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Thread: SE, NJoy vs FDA -- Discussion

  1. #71
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    Appendix filed today by FDA. I am doing this from my phone. Will upload document tonight. Not expecting it to be exciting.

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    Oh good. Maybe the Appendix to the FDA brief will clear up the "Ibid" mystery for me.

    Even in lower doses, nicotine can cause elevations in blood pressure and
    heart rate. Id. ¶ 14 (JA 549). Short-term side-effects reported from use of “electronic cigarettes” include racing pulse, dizziness, slurred speech, mouth ulcers, heartburn, coughing, diarrhea, and sore throat. Ibid.
    Reported to whom? Reported where?

    If I understand the referencing system, "Ibid" means that they are using the same source for this assertion as for the previous one, is that correct? But the first sentence sounds as if it came out of a medical journal article while the second sentence sounds like a summary of first-person reports. Oh, but then again, it does look quite similar to the list of side effects for Nicorette.


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    Quote Originally Posted by Vocalek View Post
    Oh good. Maybe the Appendix to the FDA brief will clear up the "Ibid" mystery for me.

    Reported to whom? Reported where?

    If I understand the referencing system, "Ibid" means that they are using the same source for this assertion as for the previous one, is that correct? But the first sentence sounds as if it came out of a medical journal article while the second sentence sounds like a summary of first-person reports. Oh, but then again, it does look quite similar to the list of side effects for Nicorette.
    Elaine, yes the appendix should reveal it to you.

    The "Id" just before the "Ibid", refers to the immediately previous reference, but at a specified different page of the appendix. So looking just a bit further up in the brief from where you quoted, we see that they are citing to "Woodcock Decl. ¶ 4(JA 546)."

    Which would be paragraph 4 of Janet Woodcock's declaration (probably an affidavit submitted from her, as part of the FDA's case), and to be found in the Joint Appendix at page 546. Then, the first "Id" citation would be to her declaration at paragraph 14, on page 549 of the appendix, and so you should also find the "Ibid" reference in that same paragraph 14 of Woodcock's trash talk.
    Last edited by yvilla; 05-29-2010 at 02:12 AM.

    In case anyone's wondering WHY I still have the SD as my sig, it's because I got my first ecig in January 2008 but still smoked for 10 months, until I got my first SD. I have other APVs, but also still love and use my SD (with a Bulli on top). I will be forever grateful to Trog for saving my life!

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    Well, looks like we won't have easy access to the Appendix . . . since it's more than 500 pages, it was filed in paper form (and not electronically). The attached is the notice filed by the FDA to that effect.
    Attached Files Attached Files

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    I think I may have found the source of the "side-effect" claims the FDA is making in their appeal.

    "The FDA, lacking data that e-cigarettes pose a health hazard, was so desperate, it called on consumers to phone in adverse side effects of e-cigarettes so they could begin to build a case against them and proceed with their intended ban. They neglected, however, to request smokers who successfully quit using the e-cigarette to also call in."
    http://www.acsh.org/healthissues/new...sue_detail.asp

    Granted, this is an older article and it may have already been discussed on this forum; however, it's new information for me and I like writing out my thoughts. Besides, I'm too lazy to see if it's already been beat to death! lol

    I've edited this post four times now for errors (format, grammar, spelling...). No wonder, it’s 2:30am AST. I’d better hit the hay; right after I hit the ENI! lol
    Last edited by ezmoose; 05-29-2010 at 10:32 AM. Reason: Updated

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    Quote Originally Posted by yvilla View Post
    Elaine, yes the appendix should reveal it to you.

    The "Id" just before the "Ibid", refers to the immediately previous reference, but at a specified different page of the appendix. So looking just a bit further up in the brief from where you quoted, we see that they are citing to "Woodcock Decl. ¶ 4(JA 546)."

    Which would be paragraph 4 of Janet Woodcock's declaration (probably an affidavit submitted from her, as part of the FDA's case), and to be found in the Joint Appendix at page 546. Then, the first "Id" citation would be to her declaration at paragraph 14, on page 549 of the appendix, and so you should also find the "Ibid" reference in that same paragraph 14 of Woodcock's trash talk.
    So If I wanted to work this same scam, first I would put down all my totally unsupported accusatons on paper and swear to them. Then my lawyer would file a brief that cites references to my affidavit as evidence. Would that be an accurate description of the process?

    Wow. Next time I write a blog, I'll have to quote myself.


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    You got it Elaine, that's the way it works!

    Woodcock is the FDA's "expert", the other side can and I'm sure did present opposing evidence, and it's up to the court to decide who to believe and to credit in arriving at its decision. Classic war of the experts, found in litigation of all kinds.

    In case anyone's wondering WHY I still have the SD as my sig, it's because I got my first ecig in January 2008 but still smoked for 10 months, until I got my first SD. I have other APVs, but also still love and use my SD (with a Bulli on top). I will be forever grateful to Trog for saving my life!

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    I thought ALL Federal filings were required to be electronic pdf files?

    Quote Originally Posted by JustJulie View Post
    Well, looks like we won't have easy access to the Appendix . . . since it's more than 500 pages, it was filed in paper form (and not electronically). The attached is the notice filed by the FDA to that effect.

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    Quote Originally Posted by beebopnjazz View Post
    I thought ALL Federal filings were required to be electronic pdf files?
    There are some exceptions:
    ECF-8. Exceptions to Requirement of Electronic Filing And Service

    <snip>

    (C) Exhibits, attachments, or appendix items that (1) exceed 500 pages or 1500 kilobytes; (2) are not in a format that readily permits electronic filing, such as odd-sized documents; or (3) are illegible when scanned into electronic format may be filed in paper form. Documents filed pursuant to this subsection must be served by an alternative method of service authorized by FRAP 25, and the filer must file electronically a notice of paper filing.

    (D) Upon motion and a showing of good cause, the court may exempt a party from the electronic filing requirements and authorize filing by means other than use of the CM/ECF system. See D.C. Cir. Rule 25(b).
    I am so sorry about the below link . . . I just can't make it look right.

    http://www.cadc.uscourts.gov/internet/home.nsf/Content/Administrative%20Order%20Regarding%20Electronic%20 Case%20FilingEffective%20June%208%202009/$FILE/Admin%20Order%20ECF%20May%202009.pdf

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    This should hopefully work better: Administrative Order Regarding Electronic Case Filing

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