Law Firm News

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Law Firm News

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Orrick LLP

San Francisco Business Publication Profiles Orrick Chairman
"Chairman Ralph Baxter and San Francisco litigation partner Joe Malkin are pictured and quoted in this article about Ralph and his leadership of Orrick throughout the past 16 years.

Ralph gave up practicing law to run the firm full-time, and according to the San Francisco Business Times, ""Baxter was among the earliest -- and most successful -- to craft a full-time managerial role.""

""Ralph is keeping us focused beyond the immediate demand of our practice and clients. It's about what we need to do not just today but in 2012,"" said Malkin."

03-16-2007

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Woodcock Washburn LLP

David Wolfsohn of Woodcock Washburn Elected Chair of Philadelphia Chapter of Copyright Society
David J. Wolfsohn, a partner with the intellectual property law firm Woodcock Washburn LLP, has been appointed chair of the Philadelphia chapter of the Copyright Society of the U.S.A. The Copyright Society works to advance the study and understanding of copyright law and related rights, the scope of rights in literature, music, art, theater, motion picture, television, computer software, architecture, and other works of authorship, and their distribution via both traditional and new media.

Wolfsohn concentrates his practice on intellectual property litigation, including matters involving patents, copyrights, and trade secrets.

03-16-2007

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Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

Rethinking Patent License Agreements In The Wake Of Recent Supreme Court Decision
A recent decision by the U.S. Supreme Court has substantially altered the patent licensing landscape, according to some patent executives. The Court’s opinion in MedImmune v. Genentech stands for the proposition that a license need not breach its patent license agreement in order to bring an action challenging the validity of a covered patent. Brian Kacedon of Finnegan Henderson presented his views on the likely consequences of the MedImmune decision. “Generally, licensees will have a greater freedom to challenge the validity of patents while keeping their license intact. After MedImmune, there is now little to no risk to the licensee of losing the license,” he commented. Regarding future license negotiations, Mr. Kacedon believes that licensees are more likely to negotiate first and sue second.

03-16-2007

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Keller & Heckman LLP

FDA Budget Proposal Would End FCN Program
The U. S. Department of Health and Human Services has released its Fiscal Year 2008 budget proposal for the Food and Drug Administration. In keeping with last year's budget proposal, the FY 2008 budget would eliminate funding for the food contact notification program as the mechanism for clearing new materials and new uses of such materials with food. Instead, the budget proposal suggests that, beginning in Fiscal Year 2008 (which is set to begin October 2007), the Agency revert back to clearing such materials by way of the food additive petition process.

A food additive petition constitutes a request to FDA to amend the food additive regulations (21 C.F.R. Part 170 et seq.). Review of such petitions by FDA in the past has typically taken the Agency years to complete, and the same can be expected in the future if this again becomes the prevalent mechanism available to clear a food contact substance. In contrast, the FCN program, which has resulted in over 500 FCNs having become effective since its implementation in January 2000, has been heralded by industry for the efficiency and effective manner in which it works, allowing new food contact substances to be marketed and used in as little as 120 days from the date of filing.

Last year at this time, Keller and Heckman LLP worked closely with The Society of the Plastics Industry, Inc. (SPI) to form a coalition of companies and trade associations to lobby Congress and the Administration to reinstate funding for the FCN program. The coalition succeeded in having a provision included in an appropriations bill passed by the U.S. House of Representatives that directs continued funding for the FCN program.

In addition, the coalition was successful in convincing the U.S. Senate Committee on Appropriations to recommend restoring funding for the program in its report of an appropriations bill to the full Senate. The effort came to an end, however, when the Senate failed to pass a final bill before the end of the fiscal year, and funding for FDA and other agencies was provided by way of a continuing resolution, which essentially preserved the status quo with respect to programs and funding levels.

Keller and Heckman is once again working with SPI and the coalition formed last year to thwart this latest attempt to end the program. If the budget proposal is adopted unchanged, the only available option to clear food contact substances will once again be the filing of food additive petitions. Without the additional FDA resources available to review such filings, the years-long delays companies experienced in seeking amendment of the food additive regulations are unfortunately assured. Working with SPI, we hope to once again avert this disaster by convincing Congress to fund the FCN program.

The success of the FCN program is not in dispute. The question is whether you can afford to do without it. If you don't think so, now is the time to let your representatives know.

03-16-2007

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Locke Reynolds LLP

Locke Reynolds Cases Set Precedent for Number of Recoveries from Patient Compensation Fund
The Court of Appeals handed down two cases which were favorable to health care providers and limited the number of recoveries which could be obtained from the Patient’s Compensation Fund. In both cases, the Indiana Patient’s Compensation Fund was represented by Susan E. Cline, Lucy R. Dollens, Julia Blackwell Gelinas, and Maggie L. Smith of Locke Reynolds LLP, and plaintiffs were represented by Deb Pennington and Jerry Garau of Findling Garau Germano & Pennington. Judge Thomas Carroll of the Marion Superior Court presided over both cases in the lower court.

In Indiana Patient’s Compensation Fund v. Butcher, plaintiff was involved in an automobile accident while pregnant. She went to Sullivan County Community Hospital for evaluation and Dr. Pardeep Kumar determined that the fetus’s condition was reassuring and that she should be transported to Good Samaritan Hospital in Vincennes for delivery. When plaintiff arrived at Good Samaritan, her physician was unable to obtain fetal heart tones. The baby was delivered via c-section and died a few days later. Plaintiff and her husband filed a proposed complaint against Sullivan County Community Hospital and Dr. Kumar and included claims for the baby’s wrongful death, plaintiff’s physical injuries and emotional distress, and plaintiff husband’s emotional distress. After entering into a settlement agreement, the plaintiffs filed for recovery from the Fund. Following a bench trial, the trial court entered individual judgments for plaintiff, her husband, and the baby. The Fund appealed.

The Court of Appeals concluded that there was insufficient evidence to establish that plaintiff sustained physical injuries as a result of the defendants’ negligence. Regardless of whether plaintiff had delivered the baby at Sullivan County or at Good Samaritan, she would have required a cesarean section. There was no evidence that she endured more physical suffering as a result of the hurried nature of her c-section. She also would have experienced scarring, adhesions, and pain during recovery regardless of the timing of the c-section.

The Court of Appeals also found that the only viable claims of plaintiff and her husband would be based on emotional suffering related to the baby’s death. The Fund conceded that the parents were entitled to assert claims for emotional distress as a result of the incident. However, the Act provides that the recovery is limited to the statutorily-dictated cap for “the injury or death suffered by the actual victim of the malpractice.” The Court looked at the provision limiting recovery, which refers to the injury or death “of a patient.” I.C. 34-18-14-3. The definition of “patient” includes derivative claims. I.C. 34-18-8-22. Because any derivative claim of the parents would be included within the limits applicable to the baby, the actual recovery for those damages is limited to one statutory maximum for each actual victim of malpractice who suffers an injury or death. Because neither plaintiff nor her husband was a “victim” of malpractice, they were not entitled to recover under individual caps.

In Indiana Patient’s Compensation Fund v. Winkle, plaintiff suffered from malnutrition resulting in a neurological injury due to malpractice committed by doctors during her pregnancy. She also lost the child that she and her husband were expecting. Plaintiff and her husband filed a proposed complaint and settled with the health care providers, then sought excess damages from the Fund. The trial court found that plaintiffs were entitled to three separate recoveries – one to plaintiff for her neurological injury, one to plaintiff for her emotional distress over the loss of her child, and one to plaintiff’s husband for his emotional distress over the loss of the child. The Fund appealed.

The Court of Appeals affirmed the trial court’s award of one recovery to plaintiff and reversed the remainder of the trial court’s order. The Court of Appeals concluded that plaintiff and her husband were not entitled to separate excess damages awards resulting from the death of their unborn child. It was undisputed that plaintiff was entitled to a cap for the injuries she personally sustained as a result of the malpractice. In addition, plaintiff and her husband were entitled to seek emotional damages. However, those emotional damages did not stem from plaintiff’s injury, but from the loss of the child. Thus, the malpractice inflicted two distinct injuries – one to plaintiff and one to the unborn child.

Under Indiana law, plaintiff and her husband’s claims for emotional distress are considered “derivative claims” under I.C. 34-18-2-22. Thus, there must be a “patient” from whom those claims can derive. As determined in Bolin v. Wingert, 764 N.E.2d 201, 207 (Ind. 2002), an individual only has a cause of action if he or she is born alive. Here, the baby died in utero. Thus, plaintiff and her husband are not entitled to additional caps for their emotional distress claims because their unborn child is not a “patient” from whom those claims can derive.

03-16-2007

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Locke Reynolds LLP

Locke Reynolds Partners Participate in the Indiana Trial Advocacy College
James Dimos and Patricia McCrory recently served as faculty members at the Indiana Trial Advocacy College. Faculty members are responsible for providing guidance to lawyers that are developing their trial skills by practicing in a simulated courtroom environment.

This program is designed to develop the basic trial advocacy skills for lawyers with limited litigation experience while providing experienced trial lawyers an opportunity to sharpen their skills. The teaching method also uses faculty demonstrations and videotaped critique of each participant's performance.

James Dimos is chair of the Firm's Intellectual Property Group. His practice involves addressing the litigation needs of the business community in the areas of intellectual property, business and construction disputes.

Patricia Polis McCrory practices in business litigation and related corporate matters. She has represented directors and officers in Director and Officer litigation and entities in environmental and complex corporate litigation.

03-16-2007

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McCarter & English, Attorneys At Law

McCarter & English Wins Reversal of Bankruptcy, Circuit Courts for Equipment Lessor
Wilmington partner William F. Taylor, Jr., persuaded the Third Circuit Court of Appeals to reverse decisions of both the Delaware Bankruptcy Court and Federal District Court yesterday in a case of first impression for the Third Circuit on behalf of Computer Sales International, Inc.The Third Circuit held that equipment lessors are entitled to payment of a full month's rent under their leases, even when a Debtor rejects the equipment mid-month. After noting its obligation to defer to both courts below, the Court nonetheless reversed and held that 11 U.S.C. § 365(d)(5) requires that leases rejected after a rent payment was due should not be pro-rated to the date of rejection.Rather than remanding the case for further consideration, the Court simply remanded the matter to the Bankruptcy Court "for entry of judgment in favor of CSI.

03-16-2007

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