ALI

Subscribe to ALI via RSS
Photo of Bexis

As we mentioned in our recent American Law Institute (“ALI”) medical monitoring post, the other side is engaged in an ongoing attempt to ram recognition of a new tort for recovery of medical monitoring expenses by plaintiffs with no present injury (“no-injury medical monitoring” for short) through the ALI. One aspect of Bexis’ activity in opposition to that was to conduct detailed 50-state analysis of no-injury medical monitoring, once we determined that the ALI reporter’s material was both biased and incomplete.  We stand behind our research and have nothing to hide. Thus, there’s no reason for us not to make this same information available to our blog readers, so that’s what we’re doing here.  For long-time subscribers to the blog, please consider what follows to be an update to, and replacement of, our 2009 50-state survey on medical monitoring – ironically also prompted by ALI-related activity.

So here goes:Continue Reading Medical Monitoring – 50-State Survey

Photo of Bexis

For several years, we have blogged about the controversy over whether the American Law Institute (“ALI”) should put its Restatement Third of Torts imprimatur on no-injury medical monitoring.  Here’s the latest update, as that effort nears culmination.  As reported by the ALI, on Monday May 22, at the Institute’s 100th Anniversary annual meeting:Continue Reading Always Liability Increases (ALI)?  Not Yet with Medical Monitoring.

Photo of Bexis

That’s the main lesson of the emerging fiasco that is the ALI’s benignly named “Concluding Provisions” project for the Restatement Third of Torts.  While this title suggests that the Institute is merely engaged in routine “mop up” work, nothing could be further from the truth.  Any number of significant tort-related topics were not addressed by…

Photo of Bexis

Not too long ago we criticized a proposed “restatement” from the American Law Institute that sought to absolve plaintiffs who acted intentionally from having their conduct (such as stealing drugs, deliberately taking someone else’s prescription), count as comparative fault in the lawsuits such plaintiffs frequently file against our clients.  That particular proposal has been withdrawn…

Photo of Bexis

With Herrmann in-house and retired (from blogging, at least), only one of us is currently a member of the American Law Institute (“ALI”).  That said, Bexis headed down to DC yesterday to attend the ALI’s annual meeting.
With the Aggregate Litigation Project now done, we’re finding the Institute’s meetings less white-knuckle than they used to be – but that’s not to say that they’re boring.  Rather, there’s always something interesting going on when the ALI gets together.
Which means there’s something worthwhile to blog about.
This time it was the wrapping up of another ALI project – one that’s been going on for over a decade (since 1997)  – the Restatement (Third) of Restitution and Unjust Enrichment. The last part of this project was brought to a final vote yesterday.  It passed.  True, the ALI grinds slowly, but its final product is finer than anything you’ll find just about anywhere.
One of the things that means is that a lot of the … umm, that’s quite a mouthful so we’ll just call it the “R3RUE” for short … was finished well before Bexis ever joined the ALI.  Talk about being late to the party.  But not knowing what went on has never stopped Bexis from putting his two cents in before, and it didn’t this time.
That last chunk of the R3RUE that was up for discussion included “defenses to restitution” – leading off with the most basic:  §62 entitled “Recipient Not Unjustly Enriched.” This defense was described in the draft:

The defense stated in §62 may appear redundant. If a well-pleaded complaint alleges unjust enrichment, it must be a proper answer (and not an affirmative defense) to plead “no unjust enrichment.” . . .[T]he practical application of the present rule is to a more limited class of cases. These arise when the claimant alleges facts supporting a prima facie claim in unjust enrichment . . . but the recipient is able to show that the resulting enrichment is not unjust, in view of the larger transactional context in which the benefit has been conferred.

R3RUE §62, comment a, Tentative Draft No. 7 (March 10, 2010).
That got us (well, Bexis) interested when he read it on the train down to DC early yesterday morning.  There’s a set of recent cases in prescription drug product liability litigation that seem to fit into the pattern described in this part of the R3RUE.Continue Reading ALI, Unjust Enrichment And Prescription Drugs

Photo of Bexis

There’s a new draft of the ALI’s Principles of Aggregate Litigation in circulation. And, like all the others, you’ll have to buy it from the ALI. Make sure you ask for Council Draft #2, or you’ll be wasting your money on a superseded version.
We’ve provided you with our views – and gripes –…

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn More About This Book