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Jonathan Tabasky represents architects, attorneys, engineers, real estate brokers and appraisers, and independent insurance adjusters, among others, in negligence/professional malpractice cases. He also represents a broad range of companies in product liability and toxic tort cases including manufacturers of prescription drugs, protective clothing, fittings, heating devices, wire and cable, trucks, aircraft and turbines.

As previously reported, following the 2012 and 2013 American Bar Association’s amendments to its Model Rules of Professional Conduct, many jurisdictions began to reexamine their own rules.  Massachusetts followed suit, and on July 1, 2015, the Supreme Judicial Court (SJC) adopted several revisions to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) recommended by its Standing Advisory Committee.  This blog post is the second in a series designed to inform practitioners of several important changes to the Massachusetts rules.

The Duty to Remain Current on Latest Technologies

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Before an attorney can accept a matter, he or she has to comply with the competency standards found in Mass. R. Prof. C. 1.1.  According to said Rule, competent representation requires “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

In response to the rapidly changing technologies impacting the practice of law, the SJC adopted Comment 8 to Rule 1.1, which states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . (emphasis supplied).

With the rise of e-discovery, this Comment is particularly appropriate.  The State Bar of California Standing Ethics Committee on Professional Responsibility and Conduct in its Formal Opinion No. 2015-193, noted that “[I]n today’s technological world almost every litigation matter potentially involves [e-discovery],” and failing to have a “basic understanding of, and facility with, issues relating to e-discovery” can eliminate an attorney’s competency for a case.

We expect Massachusetts to follow the guidance provided by California’s Committee, and interpret the new Comment to allow an attorney who is not competent in this regard to nonetheless perform legal services competently by: 1) associating with or consulting technical consultants or competent counsel; or 2) acquiring sufficient learning and skill before performance is required.  Lawyers must decline the matter when they cannot meet these two provisos, and when they do not, Comment 8 gives the Board of Bar Overseers an additional tool to sanction lawyers who mishandle e-discovery by producing confidential or privileged information, or by failing to locate and produce electronically-stored discoverable data.

Comment 8 should not, however, be viewed solely in the e-discovery prism.  The headlines scream about the latest hacking attacks and disclosures of personal information.  Failing to maintain proper firewalls and other security features, notwithstanding a lack of bad faith conduct, may also viewed as a disciplinary rule violation.  Given that the use of computers and e-mail are unavoidable, lawyers should follow the same guidance applied to e-discovery.  That is, engage technical consultants or acquire sufficient learning and skill.  It may cost a few dollars, but it’s worth it, particularly in light of the potential the risks associated with Comment 8 to Mass. R. Prof. C. Rule 1.1.

For more information on the revised rules visit:

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf
Continue Reading Legal Ethics 2.0: Massachusetts Makes Changes To Its Rules Of Professional Conduct – The Requirement To Be Technologically Savvy

Following the 2012 and 2013 American Bar Association’s amendments to its Model Rules of Professional Conduct, many jurisdictions began to reexamine their own rules.  Massachusetts followed suit, and on July 1, 2015, the Supreme Judicial Court (SJC) adopted several revisions to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) recommended by its Standing Advisory Committee.  This blog post will be the first in a series designed to inform practitioners of several important changes to the Massachusetts rules.

Communicating with Jurors

courtroom-12jury-002b-564x338Last summer then Governor Patrick signed into Massachusetts law House Bill 4123 which made two significant changes to Massachusetts Superior Court procedure involving trials.  The first allowed Plaintiffs’ counsel to request a specific dollar amount as damages; the second allowed for questioning of prospective jurors (voir dire).  This summer, the SJC made a significant change to the Massachusetts Rules relating to communications with jurors after they render their verdicts by amending Mass. R. Prof. C. 3.5 to largely conform to ABA Model Rule 3.5.

The former Mass. R. Prof. C. 3.5, articulated in Commonwealth v. Fidler, 377 Mass. 192 (1979) and reaffirmed in Commonwealth v. Solis, 407 Mass. 398 (1990), prohibited lawyer-initiated, post-verdict juror contact unless authorized by court order for good cause shown.  Although the Standing Committee noted that “good cause” was a relatively low threshold, it remained concerned that a complete prohibition of non-judicially approved lawyer-initiated communications with jurors after a verdict may violate the First Amendment and prevent lawyers from receiving useful feedback.

As such, the SJC followed the Standing Committee’s recommendation and revised Mass. R. Prof. C. Rule 3.5 to largely follow the corresponding Model Rule.  Under the new Rule 3.5, attorneys may communicate with jurors post-verdict unless: (i) the communication is prohibited by law or court order; (ii) the juror has made known to the lawyer, directly or indirectly, a desire not to communicate with the lawyer; or (iii) the communication involves misrepresentation, coercion, duress or harassment.

Clearly, the Standing Committee’s desire for clarity of the rules and concerns over potential First Amendment issues were strong, and unlike several other revision recommendations, unanimously recommended this significant alteration to the rules.  In effectively abrogating Solis and Fidler, the SJC agreed, and appeared to have little concern regarding the impact the new rules may have on jurors’ willingness to serve or the potential for improper challenges to their verdict.

For more information on the revised rules visit:

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf

 
Continue Reading Legal Ethics 2.0: Massachusetts Makes Changes To Its Rules Of Professional Conduct – Communications With Jurors

Ben Franklin famously warned that “you may delay, but time will not, and lost time is never found again.” These words of wisdom appear to be lost on the Illinois state legislature, which recently abolished the ten-year statute of repose for personal injury claims related to asbestos exposure under 735 ILCS 5/13-214. Far from an esoteric legal issue, the amendment has become the front line in the latest battle of the national divide on the issue of tort reform. Some have warned that the Madison County Illinois asbestos docket, already one of the busiest and most plaintiff friendly in the country, will see a wave of new litigation from plaintiffs who missed the deadline to bring suit. The change to the statute however, may not be the seismic shift that some have forecast.

The statute in question, commonly known as the “construction statute,” previously held that “no action based upon tort…may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.” The amendment adds a subsection which reads that the limitation does not apply to “an action that is based on personal injury…resulting from the discharge into the environment of asbestos.”

This legislative action hasn’t abolished the statute of limitations in all asbestos-related claims. It has only abolished the ten-year statute of repose for claims that fall under the limited ambit of the construction statute. In other words, defendants who are commonly named in asbestos suits won’t likely see a sizeable increase in claims unless they are also involved in the construction industry.

For those who previously fell under the protection of the statute, however, the change could be as dramatic as advertised. Given the long latency period for many asbestos-related diseases, contractors, engineers and architects were often immune from suit, as some persons exposed to asbestos on a given job site may not discover their condition until well after the 10 year statute of repose had expired. With the amendment, these Defendants may find themselves named in lawsuits as often as manufacturers of asbestos-containing products.  Fortunately for them, many cases filed in Madison County arise out of exposures from other states, and in those cases, the statute will not likely apply.

Consistent with the abolition of the statute of repose, the state also recently passed a law reducing civil juries from twelve to six members. This is a shift which generally favors Plaintiffs as smaller groups are more likely to be influenced by emotion or a strong personality in the jury room.

Embedded is a link to the American Tort Reform Foundation Judicial Hellholes® Listing.  We’ll be watching to see where Illinois falls on the next list.
Continue Reading Not Satisfied with its 5th Place Finish in the American Tort Reform Foundation Judicial Hellholes® Listing, Illinois Makes A Push For Number One

Plaintiffs, when faced with a legal bar to traditional negligence claims, frequently try to cloak them in new theories of liability. This tactic is reminiscent of dialogue in William Shakespeare’s play Romeo and Juliet, in which Juliet argues that the names of things do not matter, only what things “are” is truly important.

Trend

An upsurge in this practice took place following the Supreme Court’s decision in Pliva Inc., v. Mensing, 131 S.Ct. 2567 (2011), which held that state-law claims based on a failure to warn of the risks of a generic medication are preempted by federal law. New theories presented by plaintiffs included: (1) that generic manufacturers should have warned healthcare providers of (Metoclopramide’s) risks through means other than the product’s package insert, such as by way of a “Dear Doctor” letter; (2) that state-law liability can be predicated on duties that arise solely from the FDCA; (3) that state-law liability can be premised on an alleged duty to ask the brand-name drug manufacturer to make a labeling change; and (4) that a generic drug manufacturer can be held liable for failing to stop selling a drug with allegedly inadequate warnings.[i]

Recent Defense Ruling

Wyeth-Ayerst Pharmaceuticals, Inc. (“Wyeth”) recently beat back such an effort in Tersigni v. Wyeth-Ayerst Pharm., Inc., 2014 U.S. Dist. LEXIS 86993 (D. Mass. June 25, 2014).  Plaintiff Michael J. Tersigni filed suit on March 11, 2011 against Defendant Wyeth alleging that his primary pulmonary hypertension was caused by his use of its diet drug “Fen-Phen.”[ii]

The Fen-Phen Craze

During the height of the 1990s the market was flooded with diet and weight loss drugs to combat America’s increasing problem with obesity. One such weight loss drug was known as “Fen-Phen,” which was a pharmaceutical cocktail that combined phentermine and fenfluramine. [iii] This combination was not approved by the Food and Drug Administration (FDA), yet was prescribed by doctors across the nation.[iv] Fen-Phen worked by increasing serotonin levels in the brain which had a twofold effect – the consumer would feel satiated, while also experiencing a loss in appetite.[v]

Despite contentious debate about the safety of this pharmaceutical combination, dexfenfluramine, a derivative of the Fen-Phen cocktail and the active ingredient in “Redux,” was approved by the FDA in 1996.[vi]  Sales of the product were very strong, with nearly 2 million individuals taking dexfenfluramine in the U.S. alone.[vii]  An article published in The New England Journal of Medicine in August 1997, however, revealed that Fen-Phen led to a host of illnesses including heart valve problems and pulmonary hypertension.[viii]

Wyeth was the distributor and manufacturer of Pondimin, a version of fenfluramine that had been on the market in the United States since the early 1970s, as well as Redux.[ix]  Wyeth withdrew both of these products from the market in September 1997 following a request by the FDA. This led to a torrent of litigation in which thousands sought financial compensation due to medical conditions allegedly caused by consuming these drugs, including the case
Continue Reading What’s in a name? That which we call a rose by any other name would smell as sweet;

Generic Drugs

Written by Jonathan F. Tabasky and Kate B. Puccio

Massachusetts Superior Court Judge Bruce R. Henry recently dismissed a series of claims against several manufacturers of the generic drug Metoclopramide (“MCP”), against whom failure to warn claims was alleged.  See White v. Elsevier, Inc., Middlesex Superior Court Civil Action No. 11-04441.  In so doing, Judge Henry held that Plaintiffs’ state law claims were preempted by federal law which prohibited different labeling than that associated with corresponding brand-name drugs.

Physicians commonly prescribe MCP and its Brand equivalent Reglan to treat digestive tract problems. In support of their claim for liability, the Plaintiffs proffered evidence that long term use of the drug can cause tardive dyskinesia, a severe neurological disorder.  Documented side-effects have included involuntary muscle movements, tongue protrusions and the like. The Plaintiffs claimed that the warnings in place were too weak, and underreported the incidence of such side-effects.  In support of their claims the Plaintiffs argued that in 2009, the FDA ordered a black box warning, its strongest, which states: “Treatment with [Reglan/MCP] can cause tardive dyskinesia, a serious movement disorder that is often irreversible . . . Treatment with [Reglan/MCP] for longer than 12 weeks should be avoided in all but rare cases.” The Plaintiffs further alleged that these hazards were well known by the defendants before they started taking the drug, and had the black box warning been in place at the time they ingested same, they would have taken another drug, or limited the period during which they took the drug.

The Generic Defendants moved to dismiss the Plaintiffs’ claims pursuant to Mass. R. Civ. P. 12(b)(6), contending that the Plaintiffs failed to state a claim upon which relief may be granted because federal law preempts their claims.  In making this argument, the Generic Defendants relied upon Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), a United States Supreme Court decision which addressed similar preemption issues concerning the same drug and many of the same generic manufacturers as in this case.

Judge Henry’s opinion contains a useful summary of the regulations governing the production and sale of generic drugs.  He noted that under federal law, “[a] brand-name manufacturer seeking new drug approval is responsible for the accuracy and adequacy of its label.” Conversely, ‘generic drugs’ can gain FDA approval simply by showing bio-equivalence to the brand-name drug that has already been approved by the FDA, and that the safety and efficacy labeling proposed is the same as the labeling approved for the [brand-name] drug (citations and ellipsis omitted). After this initial FDA approval, generic drug manufacturers have an ongoing federal duty of ‘sameness.’ A generic drug manufacturer that makes unilateral changes to strengthen a generic drug’s warning label would therefore violate the statutes and regulations requiring a generic drug’s label to match its brand-name counterpart’s.

Because the Plaintiffs alleged that the Generic Defendants’ duty to warn could have been satisfied by “Dear Doctor” letters or other modes of communication, Judge Henry
Continue Reading Massachusetts Court Finds Plaintiffs’ Claims Against Generic Drug Manufacturers Are Barred By Preemption