Remand Denied In Case Between Insured And Captive, Reinsurers
HOUSTON - In denying a company's motion to remand an insurance and reinsurance contract dispute, a federal judge in Texas held Sept. 26 that, among other reasons, the case fell under the New York Convention and that policy favors litigating convention claims in federal court to build a uniform body of convention law (Huntsman Corporation v. International Risk Insurance Company, et al., No. 08-cv-01542, S.D. Texas; 2008 U.S. Dist. LEXIS 74397; See 5/2/08, Page 10).
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Later Owners Of Nevada Homes May Sue Builder, State High Court Says
CARSON CITY, Nev. - Subsequent owners of residences may pursue construction defect claims against their builder under state law, the Nevada Supreme Court held Sept. 25 in denying a writ of mandamus to a subcontractor (ANSE, Inc. d/b/a Nevada State Plastering v. Judge Allan R. Earl, Eighth Judicial District Court of Clark County, Nevada [Glen Hayward, et al., real parties in interest]), No. 51049, Nev. Sup.; See June 2008, Page 6).
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McKesson Not Fraudulently Joined In California Avandia Case
LOS ANGELES - A California federal court on Sept. 18 ruled that remand is proper for a group of five plaintiffs alleging injury and death as a result of Avandia ingestion because the nondiverse defendant distributor is not fraudulently joined and federal question jurisdiction does not exist (Kathleen Rhodes, et al. v. GlaxoSmithKline, et al., No. CV 08-05954 SJO [CTx], C.D. Calif.).
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Late Notice, Pollution Exclusion Bar Coverage For Water Runoff Damage
ATLANTA - An insured's late notice and the pollution exclusion prevent coverage with respect to runoff of water and sediment onto third-party property related to an insured's land-developing activities, a Georgia judge ruled Sept. 19 (The Travelers Indemnity Company of Connecticut v. Douglasville Development LLC, No. 07-CV-0410, N.D. Ga.; 2008 U.S. Dist. LEXIS 71956).
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Judge Approves $40 Million Settlement Of Third-Party Payer Paxil Claims
MINNEAPOLIS - A federal judge in Minnesota on Sept. 30 issued an order of final approval to a $40 million settlement for class claims brought by third-party payers against the maker of Paxil for sales of the antidepressant to patients under 18 and handed down a separate order awarding plaintiffs' attorneys $13.3 million in fees (Carpenters and Joiners Welfare Fund, et al. v. SmithKline Beecham Corp., doing business as GlaxoSmithKline, No. CV 04-3500, D. Minn.; See 6/5/08, Page 7).
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Southern District Of West Virginia Judge Denies PFOA Class Certification
PARKERSBURG, W.Va. - Residents of Parkersburg seeking certification of a class action against DuPont for contaminating the municipal water supply with perfluorooctanoic acid (PFOA) failed to satisfy the burden of Federal Rule of Civil Procedure 23 for class treatment of their claims, U.S. Judge Joseph R. Goodwin of the Southern District of West Virginia said Sept. 30 (William R. Rhodes, et al. v. E.I. du Pont de Nemours & Co., No. 06-530, S.D. W.Va.).
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Federal Judge Issues $1.22 Billion Final Judgment In Stent Disputes
WILMINGTON, Del. - A decade-old patent dispute between Johnson & Johnson Interventional Systems and its parent corporation, Cordis Corp., against two rival stent makers ended Monday with a $1.2 billion final judgment (Boston Scientific Corporation and SciMed Life Systems Inc. v. Ethicon Inc., Cordis Corporation and Johnson & Johnson Interventional Systems, No. 98-19-SLR, D. Del. and Cordis Corporation v. Medtronic Vascular Inc., Boston Scientific Corporation and SciMed Life Systems Inc., No. 97-550-SLR, D. Del.).
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BAP 10th Circuit Reverses; More Findings Needed On Decision To Lift Stay
DENVER - A U.S. Bankruptcy Appellate Panel (BAP) for the 10th Circuit on Sept. 11 reversed a bankruptcy court's ruling that had denied a creditors' motion to lift the automatic stay in pursuit of their underlying claims against the debtor related to a failed business partnership (Glynn David Harris, et al. v. Calvin Appleberry [In Re: Calvin Appleberry], No. 07-113, Chapter 7, BAP 10th Cir.; 2008 Bankr. LEXIS 2304).
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Plaintiff Partially Granted Summary Judgment In Copayment Dispute
ST. LOUIS - In partially granting summary judgment in favor of a plaintiff in a copayment dispute, a Missouri federal judge on Sept. 24 held that a 50 percent copayment cap applies under Missouri regulations and that the cap applies at the point of services (Lisa M. Vermiglio v. Group Health Plan Inc., No. 07-282, E.D. Mo.; See 1/23/08, Page 4).
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FACTA Violations Are Not Covered Under Policy, Judge Determines
PITTSBURGH - An insurer has no duty to defend or indemnify its insured for an underlying class action suit alleging that the insured violated the terms of the Fair and Accurate Credit Transactions Act (FACTA) because the underlying class action does not allege an invasion of a person's privacy right or claim that the insured is liable for publication of material that appropriates a person's likeness as required under the policy, a federal judge said Sept. 29 (Whole Enchilada Inc., v. Travelers Property Casualty Company of America, No. 07-1533, W.D. Pa.).
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Judge Bars Friction Testimony, Finds 'Bald Conclusions,' No Methodology Behind Evidence
PHILADELPHIA - A Pennsylvania judge on Sept. 24 precluded plaintiffs' experts from offering their opinions on asbestos friction products, finding that no methodology supports their conclusion that every exposure to asbestos is a substantial contributing factor (In re: Asbestos Litigation, certain asbestos friction cases involving Chrysler LLC, No. October Term 0001, Pa. Comm. Pls., Phila. Co.).
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High Court To Review CERCLA Liability Apportionment Dispute
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 1 agreed to hear a dispute over the apportionment of liability two railroads and an oil company should bear in the cleanup of a California site where toxic agricultural chemicals were stored and distributed (Burlington Northern & Santa Fe Railroad Co., et al. v. United States of America, et al., No. 07-1601; Shell Oil Co. v. United States of America, et al., No. 07-1607, U.S. Sup.).
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Judge Approves $40 Million Settlement of Paxil Third-Party Payer Claims
MINNEAPOLIS - A federal judge in Minnesota on Sept. 30 issued an order of final approval to a $40 million settlement for class claims brought by third-party payers against the maker of Paxil for sales of the antidepressant to patients under 18 and handed down a separate order awarding plaintiffs' attorneys $13.3 million in fees (Carpenters and Joiners Welfare Fund, et al. v. SmithKline Beecham Corp., doing business as GlaxoSmithKline, No. CV 04-3500, D. Minn.).
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Bankruptcy Judge Denies Settlement Option For Payment Of Cooper And Abex Claims
WILMINGTON, Del. - A bankruptcy judge on Sept. 30 denied a settlement that was proposed as part of Federal-Mogul Global Inc.'s reorganization plan that would have required Cooper Industries LLC and Pneumo Abex to pay $756 million into a subfund of the asbestos creditors' trust, finding that the settlement failed to meet the requirements of Bankruptcy Code Section 524(g) (In re: Federal-Mogul Global Inc., T&N Limited, et al., No. 01-10578, D. Del. Bkcy.).
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ICSID: Misrepresentations By Investors Defeat Protections Of Energy Charter Treaty
WASHINGTON, D.C. - An International Centre for Settlement Disputes (ICSID) tribunal on Aug. 27 dismissed all claims by Plama Consortium Limited (PCL), a Cypriot company, against the Republic of Bulgaria, ruling that the company's deliberate concealment of its true investors precluded the protections of the Energy Charter Treaty (ECT) (Plama Consortium Limited and Republic of Bulgaria, No. ARB/06/11, ICSID; See October 2005, Page 9).
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Judge Grants New Trial Motion In Online Distribution Case
DULUTH, Minn. - On Sept. 24, a federal judge in a closely watched case pertaining to copyright infringement of digital music granted an accused downloader a new trial, expressing doubts over whether making songs available online constituted "distribution" under the Copyright Act and calling the previously awarded damages to the plaintiff record labels "unprecedented and oppressive" (Capitol Records Inc., et al. v. Jammie Thomas, No. 06-cv-1497, D. Minn.; See June 2008, Page 10).
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Wal-Mart Class Recertified; Expert Wrongly Barred, Massachusetts Court Says
BOSTON - The Massachusetts Supreme Judicial Court on Sept. 23 reinstated a class action by hourly employees against Wal-Mart Stores, citing numerous errors, including wrongful exclusion of a plaintiffs' statistician whose methodology was not challenged (Crystal Salvas and Elaine Polion v. Wal-Mart Stores, No. SJC-10108, Mass. Sup.; 2008 Mass. LEXIS 629).
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8th Circuit Rules Further Briefing On Job Classification Needed
ST. LOUIS - A district court erred by awarding benefits and declaring that the insurer used the wrong job description without allowing the parties to brief the issue, the Eighth Circuit U.S. Court of Appeals ruled Sept. 11, suggesting the district court remand the issue to the plan administrator for further claim review under the O*Net job classification definition (Larry G. Jones v. Mountaire Corporation Long Term Disability Plan, et al., No. 07-3118, 8th Cir.; 2008 U.S. App. LEXIS 19288; See August 2007, Page 4).
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6th Circuit Panel Allows Defective Ladder Action To Proceed Against Retailer
CINCINNATI - The Sixth Circuit U.S. Court of Appeals on Sept. 17 affirmed partial summary judgment in favor of the plaintiffs in a defective ladder action, ruling that the trial court does not have jurisdiction over a German company (Jimmie Smith and Georgianna Smith v. Home Depot USA Inc., No. 07-6127, 6th Cir.; 2008 U.S. App. LEXIS 19858).
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GSK Seeks Reconsideration Of Ruling Finding No Preemption
PHILADELPHIA - A federal judge's finding that a woman's state law failure-to-warn claims are not preempted by Food and Drug Administration regulations should be reversed or certified for appeal, the maker of Paxil says in a Sept. 15 motion for reconsideration, because the judge's decision was the result of the plaintiff's inaccurate representation regarding the company's submission of data to the agency and misapplication of case law (Marion L. Knipe, et al. v. SmithKline Beecham, et al., No. 06-3024, E.D. Pa.).
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