On August 16, 2011, the Panel decided that all federal Darvocet and Darvon cases would be consolidated in the Eastern District of Kentucky (Covington Division) and assigned to the Honorable Danny C. Reeves for pretrial proceedings. The granting of multi-district litigation (MDL) treatment will streamline the lawsuits, allowing the parties to avoid duplicative discovery and inconsistent rulings from different judges. Additionally, MDL treatment will provide more convenience for the witnesses, the parties and the court.  

In November, 2010, the FDA announced that it was pulling off the U.S. market the prescription painkillers, Darvon and Darvocet, which combines Darvon with the aspirin substitute acetaminophen, because of scientific evidence the drugs can damage the heart, even at recommended doses, or cause fatal cardiac abnormalities.  Studies have shown that the ingredients contained in Darvocet and Darvon have been linked to various forms of severe side effects. Reportedly, these side-effects include: heart arrhythmia, heart attack, suicide, accidental overdose and death. 

If you feel you have experienced any side-effects from taking Darvocet, Darvon or generic propoxyphene you can contact Stark & Stark and speak to one of the Mass Tort/Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the Darvocet or Darvon manufacturers.

On April 11, 2011, the Panel announced that it needed more time to consider the arguments for and against consolidating the federal cases.  A decision is now not expected until after a July 2011, hearing where additional arguments are expected to be made.  The Panel noted that plaintiff, Karen Esposito, who filed the initial motion for consolidation back in December 2010, alleged four actions against defendant, Xanodyne Pharmaceuticals.  However, since Esposito’s filing, there are an additional eighteen (18) alleged actions involving more than a dozen defendants.  These additional defendants have not had an opportunity to comment on whether the cases should be consolidated. 
 

Judge John G. Heyburn II, chairman of the Judicial Panel on Multi-District Litigation advised that, “Consideration of this Section 1407 motion so soon after a handful of actions were filed, where the contours of the litigation are in flux, leaves the Panel with less than ideal information to make the best possible decision. This is a potentially complex case. Our desire to make the most informed possible decision counsels further deliberation.”  In the interim, the Panel has advised that the cases can continue in the transferor courts.
 

If you feel you have experienced any side-effects from taking Darvocet, Darvon or generic propoxyphene you can contact Stark & Stark and speak to one of the Mass Tort/Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the Darvocet or Darvon manufacturers.

If you, or someone you know, has been injured by YAZ® or Yasmin® (or the generic brand, Ocella®), contact one of the Stark & Stark Mass Tort/Pharmaceutical Litigation attorneys today, free of charge, who can help assess any claims that you might have against the YAZ®, Yasmin® or Ocella® manufacturers.

The location of the depositions had been a source of contention between the parties. Because German law does not provide for American-style depositions, defendants had suggested the depositions be held in Belgium. However, plaintiffs objected to the Belgium location, arguing that the cost of flying up to a dozen attorneys to Belgium would be cost prohibitive. Subsequently, defendants moved for a protective order, claiming that the executives would be away from their duties too long if forced to travel to the U.S. After considering arguments on both sides, Judge Herndon concluded that, "equities favor[ed] the depositions being held in the United States." 
 

However, it appears that cooperation between the parties has broken down over the last couple months.
 

On January 20, 2011, Judge Herndon advised that all depositions were being halted until he could write a new protocol for them and submit them to the state judges in California, Pennsylvania and New Jersey. During a hearing on an unrelated matter, Judge Herndon opined that the, “depositions ha[d] been anything but efficient.” Judge Herndon further opined that the depositions had wasted time and were uncooperative. However, Judge Herndon continued to express his intentions to include the state judges in his decisions.

If you feel you have experienced any side-effects from taking YAZ® or Yasmin® (or the generic brand, Ocella®), you can contact Stark & Stark and speak to one of the Mass Tort/Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the YAZ®, Yasmin® or Ocella® manufacturers.

The granting of MDL treatment will streamline the lawsuits, allowing the parties to avoid duplicative discovery and inconsistent rulings from different judges.  Additionally, MDL treatment will provide more convenience for the witnesses, the parties and the court.  During the pretrial litigation, Judge David A. Katz will manage discovery and likely select a group of cases for early trials, also known as bellwether cases.  The outcome of the bellwether cases may assist the parties in reaching an agreement to settle all of the DePuy recall suits.

As of early January 2011, over 100 lawsuits had already been transferred to the MDL court.  However, it is expected that thousands of additional DePuy hip recall lawsuits will be transferred to the Northern District of Ohio within the next several months.

On January 20, 2011, the court held an initial status conference in West Palm Beach, Florida.  During the conference, the lawyers who applied for leadership positions within the MDL process received two minutes each to give their reasons for being assigned the various positions available.  Judge Katz’s ruling is expected in the coming weeks.

If you have had a hip replacement, which used one of the recalled DePuy devices, you can contact Stark & Stark and speak to one of the Mass Tort attorneys, free of charge, who can help assess any claims that you might have against the DePuy manufacturers.

The parties involved in the Mass Tort litigation have agreed upon the wording of a form called the Plaintiff Fact Sheet.  In pharmaceutical cases with Mass Tort or MDL designations, plaintiffs are required to submit a detailed Plaintiff Fact Sheet.  The Plaintiff Fact Sheet requires the plaintiff to supply medical, liability and general background information within a specified time period, usually subject to periodic updating and revision.  While much of the information requested in the Plaintiff Fact Sheet may seem cumulative or irrelevant, that information is crucial to gauging the relative strengths and weaknesses of each plaintiff’s respective claim.  In this manner, the Plaintiff Fact Sheet is instrumental in permitting both parties, as well as the Court, to choose “bellwether cases” for case specific discovery and, possibly, trial.

Within the past month, a large number of cases against Bayer HealthCare Pharmaceuticals, the manufacturers of YAZ® and Yasmin®, have been designated as Mass Tort or Multidistrict Litigation (MDL) cases. Mass Tort cases (in State courts) and MDL’s (in federal courts) are methods of organizing and managing cases involving the same or similar injuries and common defendants, in an expedient, cost-effective manner that better enables the plaintiffs to pursue their claims. The Mass Tort cases will be consolidated for case management and discovery purposes before Judge Moss in Philadelphia County, Pennsylvania. The MDL cases will be consolidated for case management and discovery purposes before the Judge Herndon the United States District Court for the Southern District of Illinois.

Stark & Stark’s Mass Tort/Pharmaceutical Litigation Team pursues claims throughout the nation against drug manufacturers, so they can be held accountable when the drugs they market are proven to be defective or cause catastrophic injury to the people who use them. If you feel you have experienced any side-effects from taking YAZ® or Yasmin® (or the generic brand, Ocella®, which is marketed and distributed by Barr Laboratories), you can contact Stark & Stark and speak to one of the Mass Tort/ Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the YAZ®, Yasmin® or Ocella® manufacturers.

What are low-trauma bone fractures?
Studies show that low-trauma bone fractures generally occur as a result of a fall from standing height or less, where the bone breaks in an unusual, horizontal pattern. Such fractures have been found to generally occur in the femur (thigh) bone. However, bone necrosis and bone brittleness have also been reported to have been found, though much more rarely, in other parts of the body.

These drugs are manufactured by pharmaceutical companies such as Merck, Novartis, Proctor & Gamble and Sanofi-Aventis. Bisphosphonates are used to treat, among other things, osteoporosis, bone metastasis during cancer treatment, osteoarthritis and other conditions that feature bone fragility. Studies show that bisphosphonate treatment can cause severe side-effects including Osteonecrosis of the Jaw and low-trauma bone fractures.

 

Studies have shown that NuvaRing® has been found to carry more severe side-effects than its oral contraceptive counterparts. This disparity in the levels of reported side-effects has been attributed to the direct method of hormone introduction. Studies also show that the major side-effect of NuvaRing® is deep vein thrombosis, or blood clots. These blood clots form in the deep veins of the legs, pelvis, or arms causing major discomfort. It has been found that, if the clot dislodges, it can lead to sudden, and many times fatal, stroke, heart attack, myocardial infarction or pulmonary embolism.

Currently, NuvaRing® claims are the subject of a Multi-District Litigation in the United States District Court for the Eastern District of Missouri, having been consolidated for discovery purposes in August of 2008. More recently, NuvaRing® claims have been selected for Mass Tort treatment in the New Jersey Superior Court, Bergen County.

Although required to do so, Imperial failed to identify lace design No. 8191 as a derivative work on its copyright application. As this appears to have been the result of mere inadvertence rather than fraud, however, this omission in no way invalidates Imperial's copyright registration. See Eckes v. Card Prices Update, 736 F.2d 859, 861-62 (2d Cir.1984); Harrison/Erickson, Inc. v. Chicago Bulls Ltd. Partnership, 1991 WL 51118, at *5 (S.D.N.Y. 1991).

Mr. Rodack testified at trial that, since he believed he had designed the wagons himself based on his own original ideas, there was nothing ‘preexisting’ to report. He may have been entirely incorrect in his narrow reading of the term ‘preexisting,’ but this does not establish intentional or purposeful withholding of information.

Defendant offered nothing to refute Mr. Rodack's claim of lack of understanding of the requirements of section 6 of the application, except the fact that Mr. Rodack had prepared numerous applications in the past. This in itself is insufficient to prove fraudulent conduct or the necessary scienter to warrant invalidation of the copyrights.

The arrangement of the roses over the background portion of Pattern # 1365, while perhaps elementally symmetrical, does not appear to be designed to ease manufacture since, once the decision as to how to place the item against the background was made and executed, the whole piece was copied mechanically. Thus, it did not matter for manufacturing purposes of what the original design consisted. Rather, Sadjan's decision to place the roses in straight rows was an artistic decision. Further, there is no evidence that Sadjan copied the placement of the roses from any source. Consequently, the district court's finding that the particular arrangement given the Folio Rose in Pattern # 1365 was not original was clearly erroneous. Although the arrangement may have required little creative input, it was still Sadjan's original work and, as such, copyrightable.

The foregoing rule (1) is especially applicable where there is litigation between the parties involved in a large-scale industrial construction project, where the sub-subcontractor shares no privity with the EPC contractor or owner. The New Jersey legislature has already provided a remedial scheme for allegedly unpaid sub-subcontractors and other indirect suppliers, namely, the construction lien law. For example, in Insulation Contracting, Inc. v. Kravco, 209 N.J. Super. 367 (App. Div. 1986), plaintiff, Insulation Contracting, a sub-subcontractor, entered into a contract with Peyton Contractors to supply and install insulation. Peyton was a subcontractor of general contractor, Kravco. After the default in performance by subcontractor Peyton, Kravco terminated Peyton. Plaintiff instituted an action against the owner, Peyton and Kravco, for the balance due under its sub-subcontract. Id. at 369-70. The court analyzed each of the contract provisions and noted that in none of the contracts did either Kravco or the owner assume the obligations of defendant Peyton in the case of default.

Significantly, the Kravco court also rejected the claim that plaintiff was a third-party beneficiary of the remaining contracts, concluding that the language in the contracts did not indicate that there was an intent to confer a benefit on Insulation Contracting and, thus, it was not a third-party beneficiary that could seek redress directly against Kravco. Id. at 375-76; see, also, F. Bender, Inc. v. Muscarelle, Inc., 304 N.J. Super. 282, 285 (App. Div. 1997) (Sub-subcontractor could not recover against contractor or owner based upon quasi-contract claims since such actions, if permitted, would undermine the mechanic’s lien system and disrupt the construction industry).

Therefore, the sub-subcontractor’s third-party beneficiary claims against the EPC contractor and owner will not support any cognizable claim for relief, and must be dismissed. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989); Leon v. Rite Aid Corp., 340 N.J. Super. 462, 466 (App. Div. 2001); Rule 4:6-2(e). The sub-subcontractor is thus left to seek redress under the statutory provisions of the construction lien law, and through its direct contractual claims against the subcontractor.

(1) One significant exception to this general rule arises when the EPC contractor chooses to pay the sub-subcontractor through a joint check arrangement. In such cases, the sub-subcontractor must show that: 1) the joint check agreement was specifically made for the benefit of the sub-subcontractor; 2) the EPC contractor indicated that it specifically intended to be responsible for ultimate payment to the sub-subcontractor; 3) the sub-subcontractor supplied consideration on its part; and 4) the agreement contained clear provisions vis-a-vis the sub-subcontractor, such as directing payment of a sum certain to the sub-subcontractor. See Onorato Const., Inc. v. Eastman Const. Co., 312 N.J. Super. 565, 572-3 (App. Div. 1998) (Only under certain circumstances may an agreement by a general contractor to pay sub-subcontractors or suppliers directly or with joint checks result in the general contractor's assumption of liability for those payments despite a prior lack of privity); see, also, Maccaferri Gabions, Inc. v. Dynateria Inc., 91 F.3d 1431, 1439 (11th Cir. 1996) (General contractor, by entering into joint-check agreement with subcontractor, did not assume subcontractor's duty to pay materialman directly for all materials that it delivered to site of federal construction project; joint-check arrangement had to be interpreted in accordance with entire agreement between parties, so as not to create conflict with other provisions which clearly required subcontractor, and not general contractor, to pay materialmen, and which authorized general contractor to withhold payment from subcontractor if it did not secure releases from those materialmen).