92 Constitutional Law

92VI Enforcement of Constitutional Provisions

92VI(B) Estoppel, Waiver, or Forfeiture

92k947 k. Waiver in General.

Defendants in a civil case waived the issue of an alleged violation of their due process rights, relating to trial judge allowing jurors to wear costumes, in the courtroom, on Halloween; the judge did not merely accommodate the jurors’ request to wear costumes, and instead consulted with counsel for all parties before doing so, and all counsel agreed that jurors could wear costumes.
Zabin v. Picciotto, 896 N.E.2d 937 (Mass. App. Ct. 2008)

Westlaw provides a one-stop resource for all of the arbitration information you need. In this lesson, you will learn about the new Arbitration content and the new Arbitration tab now available on Westlaw. In this lesson on WeC you will learn about:

• New Arbitration content on Westlaw
• New Arbitration tab

382T Trademarks

382TII Marks Protected

382Tk1038 k. Suggestive Terms or Marks.

“Suggestive marks,” which will be protected without proof of secondary meaning, are marks that subtly connote something about service or product at issue, such as “Eskimo Pie” for ice cream bars.
Breakers of Palm Beach, Inc. v. Int’l Beach Hotel Dev., Inc., 824 F. Supp. 1576 (S.D. Fla. 1993)

279 Nuisance

279I Private Nuisances

279I(C) Abatement and Injunction

279k19 k. Nuisances Subject to Abatement or Injunction.

The playing of baseball is not a nuisance per se, against which persons living in the vicinity where the game is played may necessarily be entitled to equitable relief, but a baseball park may be so conducted, or the game may be played under such conditions as to constitute a nuisance.
Carter v. Lake City Baseball Club, 62 S.E.2d 470 (S.C. 1950)

Suggested by Jonathan Meyer, West Reference Attorney

349B Securities Regulation

349BI Federal Regulation

349BI(E) Remedies

349BI(E)1 In General

349Bk150 Insiders’ Profits, Recovery of

349Bk150.1 k. In General.

The manner in which defendants, who were found to have violated securities laws, chose to spend their misappropriations is irrelevant as to their objection to disgorge; whether they chose to use this money to enhance their social standing through charitable contributions, to travel around the world, or to keep their co-conspirators happy is their own business.
S.E.C. v. Levine, 517 F. Supp. 2d 121 (D.D.C. 2007)

96H Controlled Substances

96HIII Prosecutions

96Hk61 Indictment, Information or Complaint

96Hk65 k. Substance and Quantity Involved.

Because purpose of indictment is to identify clearly crime being charged, thereby putting accused on reasonable notice to defend against it and prepare for trial, indictment alleging trafficking in compound obtained from cocoa leaves was not so defective as to deprive trial court of subject-matter jurisdiction given trial evidence showed over 637 grams of a 35 percent cocaine mixture; at no time could defendant realistically have thought that he was charged with trafficking in chocolate.
State v. Thrift, 336 S.E.2d 861 (N.C. Ct. App. 1985)

92 Constitutional Law

92XXVI Equal Protection

92XXVI(E) Particular Issues and Applications

92XXVI(E)12 Trade or Business

92k3681 Licenses and Regulation

92k3684 Attorneys and Paralegals

92k3684(1) k. In General.

Lawyers are not a suspect class, for purposes of equal protection component of Fifth Amendment.
Russell v. Hug, 275 F.3d 812 (9th Cir. 2002)

Suggested by Christine Djaletta; Office of the Clerk, Legal Division; Court of Appeals – Third Circuit; Philadelphia, PA

Question:
Is there a chart or some sort of reference material that would show the pharmacokinetics of various drugs?

Answer:
Not that I’m aware of. The pharmacokinetics of a specific drug in a specific patient are calculated using sophisticated mathematical formulae that must take into consideration the unique factors for that patient. You would ask your expert witness (usually a pharmacologist or clinical pharmacist) to do the calculation for you. What you don’t want is for your expert to omit essential factors when doing the calculation.

Question
Aren’t tissue samples a better indicator of the bioavailability.

Answer:
For drugs other than IV administered, the bioavailability depends on factors such as rate of uptake from the GI tract or from muscle injection sites. The drug enters the blood stream and bioavailability can then be measured by testing the drug’s blood level at various times. Bioavailability is based on level of drug in the “systemic circulation.” Tissue samples tell you how much of the drug has entered a specific tissue, which may vary with such factors as lipid solubility of the drug, but this may be quite misleading as to bioavailability. On the other hand, tissue levels may be a better measure than bioavailability of the actual effect of the drug on the target organ.

Question:
How does a litigator get around a physician’s disregard the warnings and side effects listed in a drug’s monograph as just a “placebo” effect.

Answer:
“Just” a placebo effect may reflect drug studies that showed no difference between a test group using the drug and a control group not using the drug. Any effect arising solely from patients’ belief they are taking the drug is placebo effect. However, placebo effect is often very real. Belief can impact brain chemistry which creates a real physical effect such as pain reduction. Discuss the placebo effect of the drug with your expert witness/consultant who may be able to lead you out of the problem by identifying physical changes resulting from the placebo effect.

Question:
Should physician’s be limited to prescribing drugs to the scope of their specialty (e.g. ritalin being prescribed for ADD by someone other than a psychiatrist?)

Answer:
This is not practical even though physicians often extend beyond their level of competence when prescribing. The problem is that patients cannot realistically be referred to the appropriate specialist for every drug they need. If I am treating a patient for a muscle strain and the patient mentions inability to sleep due to the pain, or incidental symptoms of a urinary tract infection, I cannot send the patient to a psychiatrist just for sleep medication or to a nephrologist/urologist just for urinary tract antibiotics. Physicians do sometimes cross the line when they undertake to treat a problem clearly beyond their competence, but scope of medical practice is difficult to define. A medical license covers all specialties of medicine, and it is very desirable for physicians to look beyond the limits of their own specialty when treating a patient. Otherwise, too many medical problems will “fall in the crack.”

Question:
Is there a way to tell between generic drug & brand name in the blood or urine — e.g. Lortab

Answer:
If you look at the Drug Finder, Chapter 40, in Attorneys Medical Deskbook 4th, you will find every drug listed alphabetically by both brand name and generic name. If generic, it will appear in all capital letters. Brand names appear in italics. For example, the entry you would seek is: “Lortab HYDROCODONE BITARTRATE, ACETAMINOPHEN [narcotic analgesic] Use: pain.”

Question:
Are off-label uses of drugs published in the Drug Compendia? If not, what methods do doctors learn about these off-label uses?

Answer:
Off-label use is frequently difficult to identify for attorneys. Off-label indications for drugs are not usually published in compendia. They appear piecemeal in the medical literature or are presented at medical conferences by experts in the field. Sometimes they are just word of mouth among physicians. “Hey, have you tried methylphenidate for resistant depression? It really works well for some patients who don’t respond to anti-depressants.” Methylphenidate is FDA-approved only for ADHD, so this is suggesting off-label use. Physicians in one specialty are often unaware of common off-label drug usage in other specialties, and there is probably some degree of off-label drug use in every specialty of medicine. The best way to identify off-label use is to ask the treating physician or an expert in the same specialty why the drug was used in a particular patient. Physicians who are careful record keepers will document the indication, but many won’t.

Following are the questions about the Medical Litigator Product Demonstration:

Question:
I am wonderng about the search query. Using Westlaw Boolean search rules, you are asking about

Answer:
Medical Litigator searches using Natural Language searching by default. In the instance of “Stroke Off Label Drug Use” it looks for documents that best match that search. So the documents that are returned will be the documents that have the largest percentage of the terms that are included in the search.

Question:
I stroke OR of OR label OR drug OR use, right?

Answer:
You do have the option of using Boolean Searching (Terms and connectors searching), by clicking on the ‘Terms and Connectors’ tab at the top of the Medical Litigator screen. In the search that was performed you are correct, the search would have been: Stroke OR Off OR Label OR Drug OR Use. So any document that had any of those terms would have returned. To do a Boolean search that would return the results you wanted, you would probably want to put the terms in the same sentence, for example: Stroke /s Off-Label /s drug /s use. Depending on the results you may want to expand your search: Stroke /p Off-Label /s drug /s use; or restrict your search: Stroke /s Off-Label /2 drug /2 use.

Customizing Your Westlaw PeopleMap Reports

Westlaw PeopleMap reports compile and save the results of your public records research and provide an organized summary providing a complete view of the information available about an individual. In this brand new lesson on WeC you will learn about:

• The Westlaw PeopleMap report options
• Report Manager
• Creating reports from public records documents

410 Witnesses

410III Examination

410III(B) Cross-Examination

410k266 k. Right to Cross-Examine and Re-Examine in General.

Purpose of cross-examination is to test intelligence, memory, accuracy, and veracity of witness.
Bright v. State, 400 S.E.2d 18 (Ga. Ct. App. 1990)