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By Lindsay Proskey

Recently, the Seventh Circuit dismissed thousands of claims against Pfizer, the manufacturer of a generic testosterone drug, Depo-T, for inadequately warning consumers that Depo-T increased heart attacks in older men.[1] The consumers' right to relief hinged on Depo-T’s classification as a generic or brand name drug. The Seventh Circuit found the plaintiff’s claims preempted under federal law and barred by Supreme Court precedent, leaving these consumers without recourse. The controlling Supreme Court precedent and outdated FDA rules collectively frustrate state tort laws, impede on consumer rights, prevent injured consumers from judicial relief, and insulate generic drug companies from state product liability law under the guise of preemption.

Federal Preemption

Federal law “preempts” or displaces state law when state and federal law conflict. The doctrine of preemption derives from the Supremacy Clause[2] of the United States Constitution. Upon state ratification, federal law became superior over state law, within the realm of constitutionally delegated authority, thereby granting states the rights and powers “not delegated to the United States.”[3]  Traditionally, states have the power to establish and enforce laws protecting the welfare, safety, and health of the public. Since federal and state governments have both exclusive and concurrent powers, a problem exists when both levels of government regulate the same subject matter. Where preemption applies, federal law trumps state legislatures, courts, administrative agencies, and constitutions. Thus, the Supreme Court accepts the Supremacy Clause as a “basic constitutional command that all conflicting state provisions be without effect.”[4]

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By Lindsay Proskey 

Recently, the Center for Disease Control and Prevention (“CDC”) warned that 149 individuals across 29 states have been infected with E. coli after consuming contaminated romaine lettuce. Of those infected, 64 people were hospitalized including 17 individuals who developed hemolytic uremic syndrome, a potentially life-threatening kidney failure caused by the abnormal destruction of red blood cells. Tragically, one death has been reported.

What You Need to Know About Shiga Toxin-Producing E. coli

E. coli are bacteria commonly found in the environment, foods, and intestines of people and animals. Although mostly harmless, E. coli can cause illness or death once escaped outside the intestinal tract. Symptoms such as abdominal cramping, bloody diarrhea, fever, or vomiting appear approximately two to eight days after consuming the bacteria. The most common mode of transmission to individuals is through consumption of contaminated foods, such as undercooked meat or through cross-contamination during food preparation. However, unhygienic person-to-person contact can also transmit the bacteria through the oral-fecal route.

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By Timothy Tomasik & Patrick Grim

Justice Ruth Bader Ginsburg delivered the opinion in Coventry Health Care of Missouri, Inc. v. Nevils, one of the last Neil Gorsuch-less cases before the nation’s highest court. Writing for the majority, the Notorious RBG made it clear that when it comes to states prohibiting insurance companies from claiming the proceeds of personal injury settlements - federal law reigns supreme.

The Nevils case stemmed from a 2006 car accident, in which Jodie Nevils, a former federal employee, was injured. Per Nevil’s employment with the federal government, Nevils was enrolled in and insured under a Federal Employees Health Benefits Act (FEHBA) plan offered by Coventry Health Care of Missouri. Soon after filing suit, Nevils recovered a settlement award against the defendant driver. Nevils v. Group Health Plan, Inc., 418 S. W. 3d 451, 453 (Mo. 2014).

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By Timothy Tomasik

If you or a loved one have been recently diagnosed with cancer, there is no doubt that you have a multitude of questions racing through your mind. What sort of treatment options are available? What are side effects of chemotherapy? How will my, or my family member’s body handle the drugs that they are prescribed after treatment? And of course, ultimately will the treatment be successful?

It is no secret that a cancer diagnosis can be one the most frightening and uncertain times for a family. Once diagnosed, patients typically consult with their doctor to determine what chemotherapy options are available to target and destroy cancer cells. Unfortunately, chemotherapy cannot tell the difference between a cancer cell and a healthy cell making temporary hair loss from a common side effect of treatment. While most patients grow their hair back after treatment ends, some chemotherapy drugs are making this loss permanent. Sadly, patients, (especially female breast cancer survivors), are beginning to experience permanent hair loss after using the chemotherapy drug Taxotere ®.

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By Timothy Tomasik

“Can I borrow your car?” is a phrase nearly every car owner has been asked at one time or another. While handing over the keys to a friend in need may seem like the courteous thing to do, it is important to remember that you are trusting the other driver to operate your car safely.  Tragically, this all-too-common courtesy can have drastic and life altering consequences for the owner when the driver borrowing the car is not properly qualified to operate it.

In the automobile context, the law governing owner liability in this scenario is called “negligent entrustment.” Negligent entrustment involves the lending of one person’s car to another when the lender knew or should have known that the borrowing driver was not qualified to use the vehicle.  Under these circumstances, the law imposes a duty not just on the driver borrowing the keys, but also on the owner.  Essentially, when the owner knew or should have known that the driver was not qualified to operate the car, the owner will be liable for the negligent acts of the trustee (driver) resulting in harm to others. Typically, whether the owner “knew” the driver was unqualified hinges on whether the owner was aware of multiple prior traffic offenses or vehicular crashes.

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