Corporate Counsel Center Drugs & Biotechnology Newsletter

DRUGS & BIOTECHNOLOGY CASES

U.S. 6th Circuit, May 16, 2008
Brittingham v. GMC, No. 06-3114
In a negligence and intentional misconduct case, summary judgment for defendants and denial of a motion to remand the case to state court is vacated and remanded where: 1) there was no federal preemption under section 301 of the Labor Management Relations Act because the collective bargaining agreement (CBA) did not impose a duty on defendant to conduct pre-employment examinations and disclose information; and 2) the district court did not have subject matter jurisdiction over the action since the plaintiff's claims were rooted in state law independent of the CBA. Read more...

U.S. 7th Circuit, May 16, 2008
Dargis v. Sheahan, No. 05-2575
In an action under the Americans with Disabilities Act and other state laws, dismissal of the claims based on a refusal to exercise supplemental jurisdiction, as well as an order directing defendant to hold a hearing on plaintiff's employment status, are affirmed where: 1) plaintiff failed to establish a prima facie case under the ADA since he could not show that he could perform the essential functions required by the position; 2) an order for a hearing is a proper remedy for a due process violation since awarding damages might produce a windfall for plaintiff; 3) a refusal to exercise supplemental jurisdiction over state law claims was proper; and 4) a motion to alter or amend the judgment was properly denied since there is no basis to do so. Read more...

U.S. 8th Circuit, May 16, 2008
Fresenius Med. Care v. US, No. 07-2299
In an ongoing investigation of hemodialysis provider's allegedly improper health care billing practices, denial of its motion to quash or modify subpoenas is affirmed where: 1) a "cold comfort" letter did not immunize it from further investigations; and 2) based on the record, it was not possible to determine which subpoenaed documents were already in the government's possession. Read more...

California Appellate Districts, May 16, 2008
Tomlin v. Workers' Comp. Appeals Bd. , No. B199429
In a workers compensation claim brought by a SWAT police officer who was injured during vacation while allegedly training for an upcoming departmental physical fitness test, denial of workers' compensation benefits is reversed and remanded where, under the facts of this case, the officer's physical training injury, albeit occurring while on vacation, was compensable pursuant to section 3600 of the Labor Code. Read more...

U.S. D.C. Circuit Court of Appeals, May 16, 2008
Adeyemi v. D.C., No. 07-7077
In a claim brought under the Americans with Disabilities Act (ADA), summary judgment for defendant is affirmed where: 1) evidence of comparative qualifications did not raise an inference of discrimination since plaintiff was not more qualified than the other people hired; 2) a reasonable jury would not find evidence of discrimination in the fact that defendant re-opened the job search in order to find better candidates; and 3) there was no discriminatory animus in asking plaintiff how he communicated in offices where no one knew sign language since the ADA permits pre-employment questions into the ability of the applicant to perform job-related functions. Read more...

Supreme Court of Texas, May 16, 2008
In re McAllen Med. Ctr., Inc., No. 05-0892
In the context of a Texas requirement that plaintiffs must support health care claims with expert reports shortly after filing, the Texas Supreme Court rules that, for purposes of challenging the adequacy of the requisite reports, mandamus relief is available when the purposes of the health care statute would otherwise be defeated. Read more...

U.S. 6th Circuit, May 19, 2008
US v. Heath, No. 07-1215
A conviction for tax evasion is affirmed over claims of error regarding: 1) the failure of the district court to properly state a jury charge by omitting that the government had to prove that a "substantial" amount of tax was due; 2) an instruction to the jury that they did not have to find defendant's conduct "willful;" 3) the phrase "Void where prohibited by law" and a jury instruction on whether a document with such a mark qualified as a fictitious financial instrument; and 4) a denial for a downward departure at sentencing stemming from a misapplication of Michigan's definition of legal insanity. Read more...

U.S. 9th Circuit, May 19, 2008
Robert F. Kennedy Med. Ctr. v. Leavitt, No. 06-56367
Summary judgment affirming a denial of plaintiff-hospital operator's Medicare reimbursement request is affirmed over a claim that the Secretary of Health and Human Services had to reimburse it for depreciation losses resulting from its disposal of assets through a statutory merger. Plaintiff is not eligible for reimbursement because the merger at issue did not qualify as a "bona fide sale" under 42 C.F.R. section 413.134(f). Read more...

U.S. 4th Circuit, May 20, 2008
Richmond Med. Ctr. for Women v. Herring, No. 03-1821, 04-1255
In a facial challenge under the Fourteenth Amendment to a Virginia statute that attempts to criminalize "partial birth abortion," which the statute terms "partial birth infanticide", summary judgment invalidating the statute is affirmed where the statute lacks an exception to protect a woman's health. Read more...

U.S. D.C. Circuit Court of Appeals, May 20, 2008
Am. Council of the Blind v. Paulson, No. 07-5063
Declaratory judgment against the Secretary of the Treasury holding that the Treasury Department's failure to design and issue paper currency that is readily distinguishable to the visually impaired violates section 504 of the Rehabilitation Act is affirmed and the case remanded to address a request for injunctive relief where: 1) plaintiff demonstrated both the denial of meaningful access and the availability of facially reasonable accommodations that are feasible and efficacious; 2) the Secretary failed to demonstrate that implementation of accommodations suggested by plaintiff involve an undue burden. Read more...

U.S. 8th Circuit, May 21, 2008
Robson v. Astrue, No. 07-1863
Denial of disability benefits under the Social Security Act for alleged disability due to post polio syndrome is affirmed where: 1) questions posed to a vocational expert contained all the concrete consequences of claimant's physical deficiencies during the relevant time period; and 2) vocational expert's response provided substantial evidence to support a finding that claimant could perform sedentary work. Read more...

California Appellate Districts, May 21, 2008
Katosh v. Sonoma County Employees' Ret. Ass'n, No. A115094
In a case addressing the meaning of the term "regular compensation" provided in Government Code section 31724 for purposes of determining the effective date of a disability retirement, the court of appeals finds that "regular compensation" in section 31724 includes compensation received for sick leave and vacation when taken by plaintiff-employee as time off. Read more...

U.S. Fed. Circuit Court of Appeals, May 21, 2008
Golden Bridge Tech., Inc. v. Nokia, Inc., No. 2007-1215
In a patent case involving a mobile communication system, summary judgment finding that certain patent claims were anticipated by a particular reference is affirmed where the only argument raised on appeal was an issue of fact never presented to the district court, and a remand was unwarranted as the argument was raised without any justification for the first time on appeal. Read more...

U.S. 7th Circuit, May 22, 2008
Filar v. Bd. of Educ. of the City of Chicago, No. 07-1275
In a disability and age discrimination action arising from a Board of Education's decision to change plaintiff's full time teacher status to a substitute teacher, as well as their refusal to accommodate her need to be assigned to schools close to public transportation due to her health condition, summary judgment for defendant is reversed as to the age discrimination claim and affirmed as to the disability claim where: 1) the court erred as to the issue of similarly situated employees since the seniority scheme at the school could easily be manipulated due to the discretionary freedom given to the principal to make decisions; 2) a legitimate non-discriminatory reason give by defendant was open to two interpretations and slightly preponderated towards a showing of age discrimination; and 3) a requested accommodation was not reasonable since it would amount to preferential treatment under a collective bargaining agreement in excusing plaintiff from certain job requirements, and the ADA does not require waiver of normal job requirements. Read more...

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DRUGS & BIOTECHNOLOGY CASES