“Clinton Lifts Bans Meant to Curb Abortions,” New York Times, Jan. 24, 1993, at sec. 44.Google Scholar

“Safeguards Approved For Fetal Tissue Research,” Washington Times, Jan. 27, 1993, sec. A 2; S. 1, 103rd Cong., 1st Sess. (1993); H.R. 4, 103rd Cong., 1st Sess. (1993).Google Scholar

See Nat'l Inst. of Health Revitalization Amendment of 1992 § 111. H.R. 102–525; Veto message from the President of the United States. (H.D.C. No. 102 09349); 138 Cong. Rec. H. 5084.Google Scholar

S. 1, 193rd Cong., 1st Sess. (1993).Google Scholar

Pending bills basically mirror H.R. 2057 which President Bush had vetoed in June, 1992, but exclude provisions which are made moot by President Clinton's lifting of the ban.Google Scholar

Revitalization Amendment, supra note 3.Google Scholar

Kolata, Gina, “Ethics and Fetal Research: Government begins to Move,” New York Times, July 31, 1988, sec. A 7.Google Scholar

Kolata, Gina, “Patients to be Subjects in Brain Study,” New York Times, May 14, 1992, sec A 1.Google Scholar

Kolata, Gina, “Success Reported Using Fetal Tissue to Repair a Brain,” New York Times, Nov. 26, 1992, sec. A 1.Google Scholar

Satus, Richard, “Promise in Fetal Tissue Research,” Boston Globe, June 8, 1992, at 15.Google Scholar

Madraza, Ignacios et al., “Fetal Homotransplants to the Striatum of Parkinsonian Subjects,” Arch Neurol, 47 (Dec. 1990) 1281–85.CrossRefGoogle Scholar

Three independent studies, released in November 1992, indicated that implanting aborted fetal tissue into the brains of Parkinsonian patients may reduce some of the problems associated with that disease. Kolata, supra note 9.Google Scholar

“The Blue Sheet,” 1991 Drug Research Reports, 34(21): 2–3, May 11, 1991.Google Scholar

Buderi, Robert, “Can Lab-Grown Cells Thwart Parkinson's and Alzheimer's?” Business Week, March 25, 1991; Satus, supra note 10.Google Scholar

(All statutes from general provisions unless explicitly listed otherwise) AZ §36–2302; AK §20-17-802; CA. Health & Safety Code §25956; FL §390.001; IL ch 38 par. 81–26; Ind. §35-1-58.5–6; LA 14:87.2; ME 22 MRS §1593; MA ch 112 §12J; MI §333.2685–89; MO §188.036; ND §14.02 1–08; NM §24–9A-3; NV; PA 18 Pa.C.S. §3216; RI §11-54-1; TN §39-15-208.Google Scholar

See MO; ND; and PA.Google Scholar

Clapp, Marilyn J., Note, “State Prohibition of Fetal Experimentation and the Fundamental Right to Privacy,” 88 Colum. L. Rev. 1073 (1988).Google Scholar

In Lifchez v. Hartigan, 735 F.Supp. 1361 (N.D. Ill. 1990) the court held a statute unconstitutionally vague due to the words “therapeutic” and “experimentation.” But, in Jane L. v. Bangerter, 1992 U.S. Dist. Lexis 7529 (C.D. Utah 1992) the court upheld a statute despite the charge of being unconstitutionally vague for using the word “experimentation.”Google Scholar

Buderi, , supra note 14; Satus, , supra note 10; and Kolata, , supra, note 8.Google Scholar

Kolata, , supra note 8.Google Scholar

But see Greenwald, Judy, “Insuring Untried Treatment; Despite Exclusions, Courts Often Find for Claimant,” Business Insurance, Nov. 25, 1991, at 2.Google Scholar

Crandall, Rebecca L., “Research Funding and the Media,” JAMA, 266 (Sept. 4, 1991) 1279.Google Scholar

Wilson v. Blue Cross of Southern California, Case No. C-476, 997, Los Angeles County (Central) Court (Apr. 6, 1992).Google Scholar

Concurrent review involves monitoring and reviewing the treatment authorized by the attending physician to determine whether the prescribed treatment is medically necessary. If the review entity decides that the treatment is not warranted, then coverage is usually terminated. Giner, David D., Note, “Paying the Piper: Third Party Liability for Medical Treatment Decisions,” 15 Go. L. Rev. 861, 883–81 (1990).Google Scholar

Wilson v. Blue Cross of Southern California, 271 Cal. Rptr. 876, 880–81 (Cal. Ct. App. 1990).Google Scholar

Id. at 876, 882.Google Scholar

Plaintiffs Trial Brief p. 10. Plaintiff's complaint contained a third cause of action against WMR for tortious interference with contractual obligations. This action was settled prior to judgment.Google Scholar

Id. at 10–11.Google Scholar

California Shoppers Inc. v. Royal Globe Ins. Co., 221 Cal. Rptr. 171 (Cal. Ct. App. 1985) Silberg v. California Life Ins. Co., 521 P.2d 1103 (Cal. 1984); Gruenberg v. Aetna Ins. Co., 510 P.2d 1032 (Cal. 1973).Google Scholar

California Shoppers, 221 Cal. Rptr. at 200–01.Google Scholar

Austero v. Nat'l Cas. Co., 148 Cal. Rptr. 653, 669–670 (Cal. Ct. App. 1978). Silberg v. California Life Ins. Co., 521 P.2d at 1108–10.Google Scholar

Plaintiffs Trial Brief, p. 25, 26, 32.Google Scholar

Sarchett v. Blue Shield of California, 729 P.2d 267 (Cal. 1987).Google Scholar

Cal. Prob. Code Sec. 573 (West 1992).Google Scholar

Because WMR settled prior to the jury verdict, WMR's liability is not discussed.Google Scholar

Telephone interview with Mr. Mark E. Reagan, plaintiff's attorney, Weissburg and Aronson (Aug. 22, 1992).Google Scholar

Court Decision impacts Nationwide Health-Care Industry; Insurance Company Use Of Medical Care Reviews Upheld, PR Newswire, NEXIS, Apr. 20, 1992, at 1.Google Scholar

Wickline v. State of California, 239 Cal. Rptr. 810 (Cal. Ct. App. 1986).Google Scholar

Id. at 825–30.Google Scholar

Wickline, 239 Cal. Rptr. at 810. An appeals process was explicitly provided for in Wickline. An attending physician could state his opposition to a finding that care was not medically necessary.Google Scholar

Wilson v. Blue Cross of Southern California, 271 Cal. Rptr. at 879.Google Scholar

Id. at 894.Google Scholar

Id. at 879–84.Google Scholar

Freudenheim, Milt, “When Treatment and Costs Collide,” New York Times, Apr. 28, 1992, sec. D 2.Google Scholar

Corcoran v. United Health Care, Inc., 965 F.2d 1321, 1331 (5th Cir. 1992). State wrongful death cause of action, brought against a utilization review organization, was held to he preempted under ERISA because the utilization review organization's decision related to decedent's ERISA plan.Google Scholar

“Plan Sponsors Must Communicate with Beneficiaries about Coverage,” BNA Pensions & Benefits Daily, NEXIS, Dec. 19, 1990.Google Scholar

McGann v. H & H Music Co., 946 F.2d 401 (5th Cir. 1991).Google Scholar

Greenberg v. H & H Music Co., 113 S. Ct. 482 (1992). Greenberg is the executor of John McGann's estate and brought this suit on behalf of his estate.Google Scholar

Pear, Robert, “Insurance-Liability Curb Poses Problem for Bush,” New York Times, May 19, 1992, sec. A 8.Google Scholar

Ford, Jason, “State-Mandated Employee Benefits: Conflict With Federal Law,” Monthly Labor Review, Apr. 1992, at 38.Google Scholar

29 U.S.C. § 1144(b)(2).Google Scholar

Metropolitan Life Ins. v. Massachusetts, 471 U.S. 724, 727 (1985).Google Scholar

Id. at 747.Google Scholar

Ford, , supra note 4, at 38.Google Scholar

Bruner, James R., “AIDS and ERISA Preemption: The Double Threat,” 1992 Duke L.J. 1115, 1130 (1992).Google Scholar

Waks, Jay W., “Disabilities Act May Affect Medical Costs,” National Law Journal, June 15, 1992 at 18.Google Scholar

Pear, Robert, supra note 3, at 8.Google Scholar

Owens v. Storehouse, Inc., 773 F. Supp. 416 (N.D. Ga. 1991).Google Scholar

Id. at 418.Google Scholar

Greenberg v. H & H Music Co., 113 S.Ct. 482 (1992).Google Scholar

42 U.S.C. § 12101 et seq. (1990).Google Scholar

56 F.R. 35,726 (to be codified at 29 C.F.R. 1630.16(f)).Google Scholar

Waks, Jay W., supra note 10, at 18.Google Scholar

Cooper, Richard M. et al., “History of Health Claims Regulation,” Food Drug Cosm. L.J. 45 (1990) 655, 657.Google Scholar

Shapiro, Laura, “Labels We Can Live By,” Newsweek, Nov, 18, 1991, at 90.Google Scholar

“The Great American Health Pitch,” Business Week, Oct. 9, 1989, at 116, 118.Google Scholar

Pub. L. 101–535, Nov. 8, 1990, 104 Stat 2353 (codified as amended at 21 U.S.C. § 301 (1990).Google Scholar

Nutrition Labeling and Education Act of 1990, H.R. Rep. No. 538, 101st Cong., 2d Sess. 9 (1990)(hereinafter NLEA House Report).Google Scholar

56 Fed. Reg. 60,366 (1991)(to be codified at 21 C.F.R. pt. 101)(proposed Nov. 27, 1991 ((hereinafter Proposed Regulations).Google Scholar

Hilts, Philip J., “U.S. Aims to Make Possible to Judge a Food by its Label,” New York Times, Nov. 6, 1991, sec. A 1.Google Scholar

“Labeling, FDA Final Rules on Nutrition Label to be Out January 6 with 30-Day Comment Period,” Daily Report For Executives, 1 (Jan. 4, 1993).Google Scholar

58 Fed. Reg. 2478 (1993) (to be codified at 21 C.F.R. pt. 101) (certain rules will become effective in May 1994) (hereinafter Final Rule).Google Scholar

Proposed Regulations, supra note 6, at 60,366.Google Scholar

Final Rule, supra note 9, at 2478. Implied health claims include those statements (e.g., a brand name including a term such as “heart”), symbols (e.g., a heart symbol), vignettes or other forms of communication that a manufacturer intends, or would be likely to assert a direct beneficial relationship between the presence or level of any substance in the food and a health or disease-related condition.Google Scholar

Cooper, , supra note 1, at 657. An example of a health claim is “This product is rich in calcium, which is effective in the prevention of osteoporosis.” A nutritional claim or health message merely states that a product contains a certain ingredient, which presumably is known for its health benefits.Google Scholar

FDA's Continuing Failure tu Regulate Health Claims for Foods: Hearings Before the Subcomm. on Human Resources and Intergovernmental Relations of the House Comm. on Government Operations, 101st Cong., 1st Scss. (1989)(heremafter FDA's Failure).Google Scholar

Drugs are defined in the Federal Food, Drug and Cosmetic Act as articles recognized in the Official Unites States Pharmacopoeia or other National Formulary and intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals, or articles (other than food) intended to affect the structure or any other function of the body of man or other animals. See 21 U.S.C. § 321(g)(1) 1992.Google Scholar

NLEA House Report, supra note 5, at 9.Google Scholar

Id. It is documented that the Office of Management coerced the FDA to rescind its 81 year old prohibition on disease prevention claims for food and to permit such claims. FDA's Failure, supra note 14, at 9.Google Scholar

FDA's Failure, supra note 12, at 3–4.Google Scholar

U.S. v. Exachol, 716 F. Supp. 787 (S.D.N.Y. 1989).Google Scholar

Cooper, , supra note 1, at 657.Google Scholar

Proposed Regulations, supra note 6, at 60,366.Google Scholar

Final Rule, supra note 9, at 2478.Google Scholar

Proposed Regulations, supra note 6, at 60,689, 60,764, 60,825,Google Scholar

Final Rule, supra note 9, at 2537.Google Scholar

Id. at 2537. Health claims can only use the words “may” or “might” in discussing the food-disease relationship. “Labeling, FDA Final Rules on Nutrition Label to be Out January 6 With 30-Day Comment Period,” Daily Report For Executives, Jan. 4, 1993, sec. D 9 (“FDA provided model language that is acceptable. ‘While many factors affect heart disease, diets low in saturated fat and cholesterol may reduce the risk of this disease.’”).Google Scholar

Id. at 2544 (“clear scientific associations of fiber intake with the incidence of cancer have not been made”).Google Scholar

Id. at 2533.Google Scholar

“The Great American Health Pitch,” Business Week, Oct. 9, 1989, at 118.Google Scholar

Final Rule, supra note 9, at 2533.Google Scholar

Id. at 2534.Google Scholar

“The Great American Health Pitch,” Business Week, Oct. 9, 1989, at 118.Google Scholar

This discussion assumes that oat bran is a valid health claim under the proposed regulations. Presently, the relationship between oat bran and cancer was specifically rejected by the FDA. Consequently, in this example, the potato chip company would first need to petition the FDA and present significant scientific evidence to meet the validity requirements. Only after the FDA accepted the petition and published the health claim in the Federal Register could the potato chip company begin to utilize such a health claim.Google Scholar

Burros, Marian, “Eating Well: FDA Plans to Take the Fantasy Out of Foods,” New York Times, Sept. 18, 1991, sec. C 1. (when FDA director Dr. Kessler went shopping, he was “stung” by the deception on food labels. He found numerous serving sizes for similar cheeses, butters and yogurts.)Google Scholar

Final Regulations, supra note 9, at 2229.Google Scholar

Id. at 2250.Google Scholar

FDA's Failure, supra note 13, at 9.Google Scholar

Daubert v. Merrell Dow Pharmaceutical, 951 F.2d 1128 (9th Cir. 1991), cert. granted, 61 U.S.L.W. 3277 (U.S. Oct. 13, 1991) (No. 92–102).Google Scholar

Savage, David G., “Justices Agree to Consider ‘Junk Science,’” Los Angeles Times, Oct. 14, 1991, at 12.Google Scholar

Biskupic, Joan, “High Court to Review Expert-Witness Standards in Products Case,” Washington Post, Oct. 14, 1992, sec A 6.Google Scholar

Daubert v. Merrell Dow Pharmaceuticals, 727 F. Supp. 570 (S.D. Cal. 1989), aff'd, 951 F.2d 1128 (9th Cir. 1991).Google Scholar

See Christopherson v. Allied-Signal Corp., 914 F.2d 66 (5th Cir. 1991), cert. denied, 112 S.Ct. 1280 (1992) (White, J., dissenting).Google Scholar

See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).Google Scholar

Id. at 1014.Google Scholar

Fed. R. Evid. 703.Google Scholar

Daubert v. Merrell Dow Pharmaceutical, 951 F.2d at 1131.Google Scholar

See, e.g., United States V. Jakobetz, 955 F.2d 786 (2d Cir. 1992), cert. denied, 113 S.Ct. 104 (admissibility of DNA profiling evidence requires preliminary showing of reliability).Google Scholar

Brief of Amici Curiae for Petitioner at 2, Daubert v. Merrell Dow Pharmaceutical, No.92–102 (U.S. filed).Google Scholar

Savage, , supra note 2, at 12.Google Scholar

Pear, Robert, “Plan to Ration Health Care is Rejected by Government,” New York Times, Aug. 4, 1991, sec. A 8.Google Scholar

Friedman, Thomas L., “President Allows States Flexibility on Medicaid Funds,” New York Times, Feb. 2, 1993, sec. A 1.Google Scholar

“Clinton: Offers Governors Greater Medicaid Flexibility,” Health Line, Feb. 2, 1993.Google Scholar

Roberts, Barbara, “Bush Blows It on Health Care,” New York Times, Aug. 11, 1992, sec. A 19.Google Scholar

Friedman, , supra note 2.Google Scholar

Navarro, Mareya, “New Definition of AIDS Arrives, Bringing New Concerns'” New York Times, Jan. 6, 1993, sec. B 3.Google Scholar

Colen, B.D., “The New Definition of AIDS,” Newsday, Jan. 12, 1993, at 59.Google Scholar

“AIDS Definition Change Proposed,” UPI, Oct. 28, 1991, at 1.Google Scholar

“Aids, By Definition, Will Soon Get Worse,” U.S. World & News Report, Jan. 11, 1993, at 9.Google Scholar

“Action AIDS Statement On New CDC AIDS Definition And Its Impact On Philadelphia,” Business Wire, Dec. 28, 1992, at 1.Google Scholar

“AIDS, By Definition, Will Soon Get Worse,” U.S. News & World Report, Jan. 11, 1993, at 9.Google Scholar

“Doctors Are Advised to Screen Women For Abuse,” New York Times, June 17, 1992, sec A 26.Google Scholar

Smolowe, Jill, “What The Doctor Should Do,” Time, June 19, 1992, at 57.Google Scholar

Maharaj, Daran, Smith, Lynn, “More Victims of Domestic Abuse Seeking Assistance,” Los Angeles Times, June 22, 1992, sec B 1.Google Scholar

Davis v, Davis, 1992 Tenn. Lexis 400 (Tenn. S. Ct. June 1, 1991).Google Scholar

Id. at 10.Google Scholar

Id. at 6.Google Scholar

Id. at 4.Google Scholar

Id. at 57.Google Scholar

Stiver v. Parker, et al., 975 F.2d 261 (6th Cir. 1992).Google Scholar

Surrogate Parenting Act, M.C.L.A. 722.859.Google Scholar

New York Anti-Referral Law, 1992. N.Y. Laws Ch. 803; Pub. Health Law §§ 238(a)-(e), 585–88.Google Scholar

Governor's Program Bill Memorandum, Program Bill #53R (1992).Google Scholar

Serbaroli, Francis J., “New York's Tough New Anti-Referral Law,” New York Law Journal, Jan. 5, 1993, at 1.Google Scholar

42 U.S.C. § 1395nn; see 42 C.F.R. 1001 (1992).Google Scholar

Serbaroli, supra note 3, at 1.Google Scholar

N.Y. Pub. Health Law § 238 ct. seq. (Supp. Dee. 1992).Google Scholar

N.Y. Pub. Health Law § 238a2 (Supp. Dec. 1992).Google Scholar

N.Y. Ins. Law § 3231(c) ct seq. (Supp. Dec. 1992).Google Scholar

See Crane, Thomas S., “The Problem of Physician Self-Referral Under the Medicare and Medicaid Antikickback Statute; the Hanlester Network Case and the Safe Harbor Regulation,” JAMA 268, July 1, 1992,85.CrossRefGoogle Scholar

Governor's Program Bill Memorandum, supra note 2.Google Scholar

Mitchell, Jean M., Scott, Elton, “Physician Ownership of Physical Therapy Services; Effect on Charges, Utilization, Profits, and Service Characteristics,” JAMA 268, Oct. 21, 1992, 2055.Google Scholar

Hillman, Bruce J. et al., “Physicians, Utilization and Charges for Outpatient Diagnostic Imaging in a Medicare Population,” JAMA 268, Oct. 21, 1992, 2050.Google Scholar

Foreman, Julie, “AMA OKs Physician Self-Referral With Stipulations,” Arch Opthamol 110, Aug. 1992, at 1058.Google Scholar

1992 Cal. A.B. 532 (enacted as Cal. Welf. & Inst. Code §§ 14088.85, 14113.85).Google Scholar