Monday, August 24, 2015

GM ignition switch defects tied to 124 deaths, 275 injuries

Attorney Kenneth Feinberg’s office has completed its review of all 4,000-plus compensation claims related to General Motors’ faulty ignition switches which prompted the recall of more than 2.6 million vehicles last year and the conclusion is that the defects have been linked to 124 deaths and 275 injuries.  Go here for the full story.

Thanks to Torts Today for the update.

Wednesday, August 19, 2015

FDA approves drug for sexual condition in women even though it has been found barely effective

Starting back in 2009, I have been following the debate as to whether the so-called Hypoactive Sexual Desire Disorder in women is really a medical condition or something the pharmaceutical industry came up with in order to convince women to buy a product they don't need. See here. The drugmaker (Boehringer Ingelheim) geared up an enormous publicity effort to promote the pill, but the FDA was not impressed and decided the pill was neither safe nor effective. See here.

At that time, all 11 members of the FDA advisory committee decided the side effects of the drug were unacceptable, and 10 ruled the pill is not effective. For the full story up to that point (including links to more information), go here.

Because of this failed effort, the manufacturer decided to discontinue development entirely. For more on the story go here.

Soon thereafter, however, Sprout Pharmaceuticals picked it up and again submitted it for approval in 2013. Since there was no new evidence to contradict the earlier findings, the FDA rejected it, again.

Somehow, however, with still no new evidence, two years later, the FDA has indeed approved the drug.  How, or why, did this happen?

Sprout smartly enlisted thousands of women’s activists and members of Congress in a campaign about gender double standards and sexual politics, in an attempt to avoid the discussion of the fact that the medical evidence that the drug actually works safely is weak and that the FDA rejected drug twice because its minimal benefits failed to outweigh the safety risks.  

Converting the discussion from one about health and safety into one about gender (based on the argument that it’s time that the agency gave the same priority to drugs to treat women’s sexual problems as it has to drugs for men) apparently provided enough pressure on the FDA to change its ruling, even though the scientific evidence is still the same.

It has been reported that the FDA approval comes with a requirement that the company take steps to ensure doctors prescribe the drug carefully and make women aware of its health risks.  But isn't that true of all drugs?  That statement adds absolutely nothing to current standards of the medical profession.

The FDA is also mandating that the drug will have with a black box warning — the strongest FDA warning language — to highlight the risk of severe blood pressure drops and fainting in patients who drink alcohol or use certain other drugs during treatment.  That is a good thing, but perversely, because of the state of the law regarding preemption in cases based on inadequate warnings, it will make it more difficult for plaintiffs to recover for injuries caused by the drug.

So, as I said in one of my recent posts on the subject, when the drug is shown to cause injuries, and the medical evidence and past history shows it more than likely will, it will inevitably result in litigation. The story is just beginning.

For more on the story you can go here, here and here.

Go here for videos on a documentary about this issue.

Sunday, August 9, 2015

Tony Stewart Sued For Wrongful Death By Family Of Kevin Ward, Jr.

You may remember a race car accident last year in which a driver got out of his car and started walking on the racetrack yelling at the driver that hit him. That driver, Tony Stewart, then hit the first driver, Kevin Ward, who later died from his injuries. ESPN is now reporting that Kevin Ward's family has filed a wrongful death lawsuit against Tony Stewart.

It will be interesting to see how the court addresses the claim because it raises several issues.  First of all, drivers who engage in race car driving assume the inherent risks of the sport, one of which is death.  However, the plaintiffs will argue that the plaintiff does not assume the risk of having a car driven into him the way Stewart did in this instance.  In reply, Stewart will probably argue that Ward was contributorily negligent in walking on the race track as the race was ongoing.  Depending on the rule in the jurisdiction, this argument may be enough to win the case for the defendant.

According to the lawsuit, Stewart gunned the throttle of his car to kick the tail end out as he drove by Ward, unlike the other cars that had passed through that section.  “Stewart could have easily acted reasonably and with prudence to avoid striking Ward, just as all other drivers had done as they passed Ward during the yellow caution flag,” reads the lawsuit. “Stewart acted with disregard for Ward’s life and safety by driving his vehicle in a manner that would terrorize Ward ...”  In other words, the plaintiffs seem to be arguing that Stewart purposely tried to scare Ward.  If that is the case, I wonder if they also included a count for battery in the complaint.

Here is a video of the accident itself:

Thursday, August 6, 2015

GM Settlement Fund Offers $1 Million Each in 124 Ingition Switch Death Claims

Details here.

Jury finds for the defendant Kansas City Royals in the case for injury caused by mascot

Long time readers of this blog might remember the case filed against the Kansas City Royals seeking compensation for an injury caused by a hot dog thrown by the team's mascot into the crowd.  My first reports on the case are here and here (including links to comments on the claim and to the original complaint).  My most recent posts on it are here (with a video) and here.

Eventually, the case went to trial and the jury found for the defendant. However, the Missouri Court of Appeals reversed the judgment and reinstated the case against the Kansas City Royals. Then, back in June 2014, the Missouri Supreme Court ruled that being hit in the eye with a flying hot dog is not an inherent risks of watching a baseball game and that, therefore, the  trial judge wrongly asked the jury to consider the defense of assumption of the risk.

The case went back to trial and just recently the jury found for the defendant.  The Kansas City Star has the story here.

Illinois Court of Appeals decides case against drug manufacturer which could be the next big case to reach the Supreme Court on the issue of preemption

Readers of the blog will remember that I have been following the debate and the cases on preemption of claims against manufacturers of generic drugs based on inadequate warnings (most recently here and here.)  

In an interesting twist to the plot, now comes a decision of the Illinois Appellate Court involving a claim based on a design defect.  In this case, called Guvenoz v. Target Corp., 2015 IL App (1st) 133940 (March 27, 2015), the plaintiff Guvenoz alleged that her husband, Lewis Guvenoz, suffered severe brain damage and eventually died from a heart attack caused by prescribed dosages of propoxyphene, a generic version of a brand name drug known as Darvocet.  The plaintiff sued the manufacturer manufactured of the generic version taken by her husband.  Six months after the decedent's cardiac arrest resulted in anoxic encephalopathy, the Food and Drug Administration banned Darvocet as unreasonably dangerous. But Guvenoz argued the manufacturers knew about correlations between Darvocet and fatal heart arrhythmias, knew the medication wasn’t very effective and knew the risk of death and serious injury outweighed the drug’s benefits. 

Because the plaintiff argued that the drug was so dangerous and of so little benefit that it should not have been manufactured or sold (the essence of a design defect claim), the crucial question of law for the Illinois Appellate Court was whether Nicole Guvenoz’s state law claims were pre-empted by the Bartlett/Mensing line of cases which hold state claims for inadequate warnings against manufacturers of generic drugs are pre-empted by federal law (because federal law forces them to use the exact same warnings used by brand name manufacturers). 

Directly addressing this question, the court concluded that “the logic of Bartlett and Mensing does not apply to plaintiff’s claims, and their holdings do not pre-empt the state law claims in this case.”  According to the court, the facts in the case at bar are very different from the facts in both Bartlett and Mensing.  In the case at bar, plaintiff alleges that there was no group of patients for whom the drug’s benefits outweighed its risks. By contrast, in both Bartlett and Mensing, the drug was safe for the vast majority of patients taking it, and only a “very small number of patients” suffered an adverse and severe reaction.  In the case at bar, plaintiff alleged that the drug was simply unsafe and should not have been sold at all, and there was no warning which could have cured the problem.

Sunday, July 26, 2015

Fiat Chrysler Hit With Record $105 Million Fine For Safety Defects

Federal regulators are fining Fiat Chrysler $105 million for failing to acknowledge and address safety defects in a timely fashion. The civil penalty — the largest ever imposed by the National Highway Traffic Safety Administration — will be accompanied by three years of "unprecedented" federal oversight, the agency says.  Go here for more details.

Court upholds constitutionality of Florida statute that authorizes defendants' lawyers in medical malpractice cases to communicate directly with the plaintiffs' doctors without having to inform the plaintiffs or their lawyers

As reported in the TortsProf blog,
In 2013, the Florida legislature passed a med mal reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications:   In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.  In October of 2014, the Eleventh Circuit held that the reform did not violate HIPAA.  Now the 1st District Court of Appeal has upheld the constitutionality of the reform from challenges that it violates the right to privacy and separation of powers. CBS Miami has the story.

Please help a friend of mine with her research

My colleague Prof. Cynthia Bond is working on a article and she needs your help.  Here is her request:

I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).
To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:
Thanks in advance for your time and have a wonderful rest of summer!
Cynthia Bond
The John Marshall Law School
Chicago, IL

Thursday, July 9, 2015

Florida Intermediate Appellate Court Rules Med Mal Cap Unconstitutional

The TortsProf Blog is reporting that "[r]elying on the Florida Supreme Court's ruling that a cap on emotional distress damages in wrongful death cases is unconstitutional, an intermediate appellate court (the Fourth District Court of Appeal) ruled the state's medical malpractice cap on non-economic damages violates the equal protection clause of the Florida Constitution."

Tuesday, July 7, 2015

Follow up on story re vaccines

Just to follow up on my posts regarding possible liability on parents who fail to vaccinate children, here are a few update on related issues.

On June 25, the California State Assembly passed SB 277, a bill mandating that children in day care or school be vaccinated. The bill eliminates the personal-belief and religious exemptions, leaving intact only the medical exemption.  See here, here, here and here.

Five days later, the Governor signed the bill into law.  See here and here.

NY Court of Appeals reaffirms rule that immunizes dog owners for injuries caused by their negligence in handling their dogs

Eric Turkewitz, of The New York Personal Injury Law Blog, has a very interesting post on a recent decision by the NY Court of Appeals (the highest court in the state) on a topic I have written about in the past - the possible liability of a dog owner.

The facts of the case are relatively simple.  The defendant allowed his dog to run around in Central Park, and later called it to come back.  The dog bolted across the road exactly as commanded but unfortunately into the path of a bicyclist who suffered an injury as a result.  The plaintiff sued the dog owner for negligence.  Simple enough: the owner was negligent in either allowing the dog to run unleashed or in the way he called it back without taking precautions, and caused an injury as a result.

Prima facie case, right?   Not so in New York, where courts, for some reason, do not recognize causes of action for negligence in cases of injuries caused by pets, although they do in cases of injuries caused by other animals.

Instead of recognizing how illogical the current state of affairs is, however, the court reaffirmed its position and decided to continue to adhere to a rule that essentially provides immunity to dog owners who cause injury with their negligent handling of their animals.

The case is Doerr v. Goldsmith  and it is available here.  In his post, Turkewitz briefly comments on the concurring opinion and one of the dissenting opinions and I agree with him entirely.  The concurring opinion's reasoning is unpersuasive and the dissenting opinions are much more reasonable, logical and consistent with basic principles of tort law.  As Chief Judge Lippman, in dissent, points out, the position taken by the court, "serve[s] only to immunize defendant from the consequences of her own negligent actions, for no reason other than that a dog happened to be involved in the accident."

Also, as pointed out by Judge Fahey, who also dissented, "We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation."

I agree.