On the agenda: Tomorrow morning, I will present oral argument on behalf of the plaintiffs/appellees to the Supreme Court of Pennsylvania in a case captioned Daniel v. Wyeth Pharmaceuticals, Inc.
The question (as drafted by counsel for Wyeth) that Pennsylvania’s highest court granted allowance of appeal to review back in December 2011 states:
Whether the Superior Court erred in reversing the trial court’s grant of JNOV for Wyeth on [Respondents’] punitive damages claim under Pennsylvania law, where (a) the FDA extensively reviewed and approved the prescription drug at issue, the sufficiency of the testing for that drug, and the drug’s label warnings of the risk of breast cancer, (b) there was no evidence that Wyeth concealed information from or misled the FDA or knew that the risk of breast cancer was greater than disclosed in its warnings, and (c) the drug was extensively tested and studied by Wyeth and independent researchers?
You can access plaintiffs’ Brief for Appellees, which I filed in April 2012, at this link.
In essence, defendant/appellant Wyeth is advancing two arguments in its appeal. First, where a prescription drug is FDA approved, punitive damages should be unavailable to the plaintiff unless the plaintiff can show that the drug’s manufacturer fraudulently withheld information from the FDA. (Of course, drug manufacturers have argued with some success — see here and here — that federal law would preempt any award for punitive damages based on a drugmaker’s alleged fraud on the FDA, potentially making that proposed carve-out illusory.)
And second, Wyeth is arguing when the supposedly “undisputed” facts relevant to punitive damages contained in the record (which is how Wyeth’s refers to its version of the facts relating to punitive damages) are considered, the record cannot support an award of punitive damages under Pennsylvania law.
Arguments are scheduled to get underway at Pennsylvania’s highest court tomorrow at 9:30 a.m., and this case is listed fifth on the oral argument calendar.
“How Nuanced is Justice Scalia’s Judicial Philosophy? An Exchange.” Today, The New Republic posted online this written exchange between Bryan A. Garner and Richard A. Posner. I have previously linked to Garner’s response to Posner’s review. Posner’s reply to Garner’s response is new.
Programming note: Additional posts will appear here this afternoon.
“Ward Churchill loses appeal to win back CU job”: The Associated Press has a report that begins, “A former University of Colorado professor who compared some Sept. 11 victims with a Nazi has lost his appeal to get his job back.”
You can access today’s ruling of the Supreme Court of Colorado at this link.
“Will acceptance of gays by high court influence rulings?” Joan Biskupic of Reuters has this report.
“In Pennsylvania, the Human Costs of Judicial Confirmation Delays; While Republicans and the White House dawdle on uncontroversial judicial nominations, real people suffer from delayed dockets and understaffed courts”: Andrew Cohen has this essay online at The Atlantic.
“A Tight Election May Be Tangled in Legal Battles”: This front page article appears today in The New York Times.
Who You Callin’ a Moroun? The Detroit Free Press reports today that “Morouns give Michigan Supreme Court justices maximum donations to campaigns.”
“How Chief Justice John Roberts Will Handle Obamacare: A lifetime of order, upended by Obamacare; How Chief Justice John Roberts will handle it.” Daniel Klaidman will have this article in Monday’s edition of Newsweek.
“Voter ID law set for review by state Supreme Court”: The Patriot-News of Harrisburg, Pennsylvania has this news update.
“Under the U.S. Supreme Court: DOMA challenges fall like snow on high court.” Michael Kirkland of UPI has this report.
“Louisiana governor appeals ruling on black supreme court justice”: Reuters has this report.
And The Associated Press reports that “State seeks review of ruling on La. Supreme Court Justice Bernette Johnson.”
“License immigrant, State Bar urges court”: Today in The San Francisco Chronicle, Bob Egelko has an article that begins, “Rejecting the Obama administration’s position, the State Bar has invited California’s highest court to invoke rarely used lawmaking powers, if necessary, to grant an attorney’s license to an illegal immigrant who has passed the bar exam.”
“Supreme Court’s Kagan gives U-M students a look behind the curtain”: This article appears today in The Detroit News.
AnnArbor.com reports that “Supreme Court Justice Elena Kagan tells U-M crowd about serious and not-so-serious workings of the high court.”
The Michigan Daily reports that “Law School unveils newly renovated South Hall” in an article that misspells Justice Elena Kagan’s last name.
And the University of Michigan Law School has issued a news release headlined “Justice Kagan Highlights South Hall Dedication Weekend” that begins, “Associate Justice Elena Kagan gave an inside look at the Supreme Court during a Friday morning talk presented by the U-M Law School, in which she said justices are not motivated to rule in certain cases to favor or disfavor a particular president, that even the politically divergent members of the Court genuinely like and respect one another, and that she–the junior justice–has tasks such as serving on the Court’s cafeteria committee.”
“Justices United: The California Supreme Court Reviewed.” Gerald F. Uelmen has this article in the September 2012 issue of California Lawyer magazine.
“F-bomb’s collateral damage: Obscenity case explores the limits of courtroom expression.” Mike Scarcella will have this article Monday in The National Law Journal about a case that is now pending on appeal before the U.S. Court of Appeals for the Fourth Circuit.
“Jury decides hormone therapy caused Utah woman’s breast cancer; Jury finds hormone therapy led to breast cancer; drug companies vow to appeal”: Brooke Adams has this article today in The Salt Lake Tribune.
“Arizona Supreme Court in Mesa case: 1st Amendment protects tattoos; Mesa case must go back to county court.” This article appears today in The Arizona Republic.
In today’s edition of The East Valley Tribune, Howard Fischer has an article headlined “Court ruling: 1st Amendment protects Mesa tattoo shop.”
And Reuters reports that “Top Arizona court rules tattooing is protected speech.”
You can access yesterday’s ruling of the Supreme Court of Arizona at this link.
“In Facebook court cases, high tech and free speech collide”: Michael Doyle of McClatchy Newspapers has this report.
“Richard A. Posner’s Badly Confused Attack on Scalia/Garner–Part 5”: Ed Whelan has this post today at National Review Online’s “Bench Memos” blog.
At last night at the “Concurring Opinions” blog, Kyle Graham had a post titled “Recent Unsent E-mails from Antonin Scalia to Richard Posner, as Retrieved from Justice Scalia’s ‘Deleted E-Mail’ Files.”
“Supreme Court Lawyer Carter Phillips Will Throw the First Pitch at Sunday’s Nationals Game; His wife ‘finagled’ the opportunity as a present for his 60th birthday”: At the “Capital Comment” blog of Washingtonian, Marisa M. Kashino has a post that begins, “Anyone attending the Nationals game this Sunday against the Miami Marlins may want to keep their eyes–and apparently their ears–open for Supreme Court Justice Samuel Alito.”
“Federal judge blocks restriction of lawyer access to Guantanamo detainees”: Del Quentin Wilber has this article today in The Washington Post.
In today’s edition of The New York Times, Charlie Savage reports that “Judge Rejects New Rules on Access to Prisoners.”
Michael Doyle of McClatchy Newspapers reports that “Judge sides with Guantanamo detainees.”
Warren Richey of The Christian Science Monitor has an article headlined “Guantanamo: Judge rejects US bid to limit lawyers’ access to detainees; In a strongly worded 32-page decision, a federal judge in Washington rejected the US effort regarding security detainees at Guantanamo, calling it an ‘illegitimate exercise of executive power.’”
Mark Sherman of The Associated Press reports that “Judge maintains Gitmo detainees’ access to lawyers.”
Reuters reports that “U.S. judge blocks new restrictions on Guantanamo lawyers.”
Josh Gerstein of Politico.com has a blog post titled “Judge: U.S. can’t set limits on Guantanamo laywers.”
And at “The BLT: The Blog of Legal Times,” Mike Scarcella has a post titled “Judge Rebukes Feds Over Attempt to Change Gitmo Attorney-Client Rules.”
You can access yesterday’s ruling of the U.S. District Court for the District of Columbia at this link.
Sixth Circuit rejects criminal defendant’s argument that the results of a functional magnetic resonance imaging lie detection test indicating that the defendant was not lying should have been admitted into evidence at trial: You can access today’s ruling of the U.S. Court of Appeals for the Sixth Circuit on this apparent question of first impression at this link.
“The Supreme Court’s next corporate campaign finance quandary”: Alison Frankel’s “On the Case” from Thomson Reuters News & Insight has this report.
“Supreme Court justice Kagan to speak at U-M”: The Detroit News has an update that begins, “Supreme Court Associate Justice Elena Kagan will speak Friday during the dedication of the University of Michigan Law School’s newest academic building.”
And AnnArbor.com reports that “Supreme Court Justice Elena Kagan to speak at University of Michigan Friday.”
The University of Michigan Law School has posted online this additional information.
“High court ruling creates uncertainty over school tax collection; In Bucks case, court rules districts must pay elected tax collectors a fair rate”: Peter Hall has this article today in The Morning Call of Allentown, Pennsylvania.
Bloomberg News reports on two rulings that the U.S. Court of Appeals for the Second Circuit issued today: An article headlined “Goldman Sachs Securities Class Action Revived On Appeal” reports on this decision.
And an article headlined “SEC’s Insider-Trading Case Against Obus Revived On Appeal” reports on this decision.
“Supreme Court’s New Agent Already Getting Them Better Cases”: The Onion has this report.
“Richard A. Posner’s Badly Confused Attack on Scalia/Garner–Part 4”: Ed Whelan has this post today at National Review Online’s “Bench Memos” blog.
“Cost of legal fight over voter ID, redistricting tops $2 million”: Today’s edition of The Dallas Morning News contains an article that begins, “Texas has now spent more than $2 million defending its law to require photo identification to vote and its redrawing of political boundaries, officials said after federal judges sided against the state in both cases last week. And taxpayers’ outlays will grow as Texas Attorney General Greg Abbott appeals both cases to the U.S. Supreme Court.”
No mention of Beavis, however: At WSJ.com’s “Law Blog,” Joe Palazzolo has a post titled “When Appellate Judges and District Judges Butt Heads.”
“Oracle-Google judge ends probe into paid bloggers”: Reuters has this report.
And Scott Graham of The Recorder has an article headlined “Alsup on Googacle Shill Order: Never Mind.”
“U.S. Supreme Court Justice Ruth Bader Ginsburg to deliver speech at CU-Boulder”: The Boulder Daily Camera has this report.
Yesterday, the University of Colorado Boulder issued a news release headlined “Justice Ruth Bader Ginsburg to keynote CU Law School’s Bench and Bar Conference.”
“Immigration-status checks of SB 1070 to take effect; Judge rejects efforts to block ‘show me your papers’ clause”: This front page article appears today in The Arizona Republic.
In today’s edition of The Arizona Daily Star, Howard Fischer reports that “SB 1070 provision is upheld by judge.”
Bloomberg News reports that “Arizona Police Can Probe Immigration Status, Judge Rules.”
Reuters reports that “Judge upholds Arizona ‘show-your-papers’ measure in mixed ruling.”
The Associated Press reports that “Police in legal minefield on Ariz. immigration law.”
And at Politico.com, Josh Gerstein has a blog post titled “Judge to allow Arizona to enforce key part of anti-illegal immigration law.”
“Court rules that L.A. can’t destroy homeless people’s property; A panel of the 9th Circuit Court says that under the 4th Amendment, Los Angeles can seize some unattended possessions but must notify the owners”: Maura Dolan has this article today in The Los Angeles Times.
And in today’s edition of The San Francisco Chronicle, Bob Egelko reports that “Homeless have right to reclaim property.”
My earlier coverage of yesterday’s Ninth Circuit ruling appears at this link.
