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Table of Contents
This Article Makes You Smarter! (Or, Regulating Health and Wellness Claims)
Sarah Duranske - [PDF]

Information has power - to inspire, to transform, and to harm. Recent technological advancements have enabled the creation of products that offer consumers direct access to a level of personal health information unprecedented in history. But how are we to balance the promise of health and wellness information with its risks?
The End of Jacobson's Spread: Five Arguments Why an Anti-Intoxicant Vaccine Mandate Would be Unconstitutional
Kellen Russoniello - [PDF]

In December 2014, "The Happiest Place on Earth" became ground zero for an outbreak of a highly infectious viral disease. While enjoying the attractions at Disneyland, the world famous theme park in Anaheim, California, forty-two park goers contracted the measles virus. The contagion spread rapidly to family and community members when the vacationers returned home, infecting 147 people across the country. Although no deaths were reported, twenty percent of those who contracted measles during the outbreak were hospitalized.
They Chose... Poorly: A Novel Cause of Action to Discourage Detrimental Genetic Selection
Sarah Weinberger, Sharon Nakar, & Dov Greenbaum - [PDF]

With current technologies, putative parents have unprecedented opportunities to select, within limitations, one or more genetic characteristics for their next generation. But, as we continue to tease out the genetic and/or epigenetic basis of more diseases, conditions and traits, we raise ever-more complicated ethically and morally questionable options in selecting for and/or against particular traits. In particular, what ought to be the litmus test, if any, in deciding which genetic disorders are "bad enough" to select against, or even to provide government assistance or insurance coverage for those selections, and what non-therapeutic genetic conditions should ever be positively selected for with or without reimbursement from insurers?
Notes and Comments
Celebrity Drug Endorsements: Are Consumers Sufficiently Protected?
Megan Smith-Mady - [PDF]

"I'm not a scientist... We had no idea what was happening behind the scenes," claimed Olympic gold medalist Bruce Jenner. Jenner was a paid endorser of the prescription drug Vioxx, an arthritis medication that was removed from the shelves when reports emerged that the drug had caused at least 160,000 cardiovascular events, including stroke and heart attack. Jenner is merely one of the many athletes and celebrities enlisted to increase sales of pharmaceuticals, a growing problem in the United States.
Recent Court Decisions
Recent Case Development: Declining to Immunize Prior Anticompetitive Acts, First Circuit Limits Application of Noerr-Pennington Doctrine
Kristyn L. Hansen - [PDF]

A recent decision by the First Circuit may mark a changing tide for pharmaceutical firms that have grown reliant on the immunity granted under the Noerr-Pennington doctrine. In modern antitrust enforcement actions, the Noerr-Pennington doctrine is frequently employed by brand-name pharmaceutical firms to shield their anticompetitive actions against generic competitors from antitrust liability. Based in First Amendment protections, the doctrine immunizes a defendant company from antitrust liability when it attempts to influence government officials to adopt laws or policies that may have anticompetitive consequences. Efforts to obstruct generic competitors from diluting a branded drug's market share are often employed as part of "product life-cycle management" schemes, which have come under sharp criticism for allowing firms to keep drug prices artificially high in the absence of competition.
Recent Case Development: Washington Supreme Court Holds that Medical Device Manufacturers Have a Duty to Warn Hospitals - Taylor v. Intuitive Surgical, Inc.
Catherine Mullaley - [PDF]

On February 9, 2017, in an opinion written by Justice Susan J. Owens, the Washington Supreme Court vacated a defense jury verdict finding that Intuitive Surgical, Inc. (Intuitive Surgical), was not liable under the Washington Tort Reform and Product Liability Act (WPLA) for injuries resulting from complications during a robotically-assisted radical prostatectomy. In a six-three decision, the Washington Supreme Court held that under Washington law, medical device manufacturers have a duty to warn hospitals of their products' dangers. The Court stated that the text of the WPLA creates a new duty that entitles the purchaser of a medical device to provide product warnings about the product it purchases. Furthermore, the Court held that the learned intermediary doctrine does not remove a manufacturer's duty under the WPLA to warn hospitals about medical equipment purchased by that hospital.