Wednesday, December 31, 2008

Professor Sebok's comments on "light cigarette" case

Professor Anthony Sebok, Cardozo School of Law, has published a column on the Supreme Court decision in Altria Group v. Good, the "light cigarettes" preemption case. In it, he argues that the case is very important "because the Court, by finding that there was no preemption, has given the green light to an important new litigation threat to the tobacco industry" and "because the two deeply-divided opinions produced by the Court give us hints as to how it will decide the next preemption case, Wyeth v. Levine," which may be one of the most significant cases decided by the Court this year. For previous posts on Altria go here, here and here. For short videos and articles on Wyeth v. Levine, go here.

Top Illinois cases of the year

The Chicago Daily Bulletin has published its "most talked-about" Illinois Supreme Court torts decisions of the year list; and here it is: ... and the winner of the most talked about case title is....: Ready v. United/Goedecke Services Inc., finding that defendants in negligence suits who settle prior to trial should not be named on jury verdict forms for the purposes of apportioning liability. The other honorable mentions are: Hudson v. City of Chicago, in which the court held that the refiling of a wrongful-death suit was barred by res judicata because the plaintiffs took a voluntary dismissal after part of their suit was dismissed on the merits. Wills v. Foster, in which the court held that a personal-injury plaintiff was entitled to recover the reasonable value of the medical care she received rather than being limited to the amount paid by Medicaid in settlement of her medical bills. Mikolajczyk v. Ford Motor Co., in which the court held that Ford Motor Co. was entitled to a new trial in a design-defect lawsuit brought by the widow of a man killed when his sedan was rear-ended by a drunken driver. The court discussed the relationship between the risk-utility and consumer-expectations tests, both of which can be used to prove that a product is unreasonably dangerous. Barth v. State Farm Fire & Casualty Co., in which the court held that an insurer was not required to prove all of the elements of common-law fraud in order to claim a coverage exclusion for intentional misrepresentation.

CPSC files suit for late reporting

The Consumer Protection and Safety Commission has been pretty much an irrelevant agency for years. It rarely tries to fine companies for late reporting safety issues to them and in over 35 years of existence, the CPSC has done sued manufacturers only a handful of times. The Product Liability Professors' Blog reports today that on December 23, 2008, the CPSC filed suit in the USDC of Minnesota against Wagner Spray Tech. The complaint is available here. As posted below, although it is not clear that the CPSC will become more aggressive in its approach to enforcement of safety regulations, there are high expectations regarding the future of this agency under the new administration.

Tuesday, December 30, 2008

Payment of settlement for damages caused by tainted pet food may be delayed

U.S. pet owners who asked for money from a $24 million settlement for owners of dogs and cats who were sickened or died after eating pet food contaminated with an industrial chemical were set to start receiving checks sometime in 2009, but their payments could be held up even longer while a judge sorts out last-minute appeals to the settlement filed by four people. While the settlement does not compensate owners for pain and suffering associated with the death or illness of their pets, it was structured to pay up to 100 percent for a variety of other costs -- from vet bills to replacing carpet ruined by sick pets. has the full story here.

Drugmaker Pays $2.6 Million Over Off-Label Marketing reports today that Nebraska Attorney General Jon Bruning has announced drugmaker Cephalon has paid more than $2.6 million to the state to settle allegations of off-label marketing of three pharmaceutical products. The settlement resolves allegations that Cephalon marketed drugs for uses not approved by the Federal Drug Administration. The drugs are Actiq, a highly addictive painkiller; the anti-seizure drug Gabitril; and the sleep-disorder drug Provigil. The money is part of a $425 million national settlement with state Medicaid programs. The Department of Health and Human Services, which runs Nebraska's Medicaid program, will receive $334,906. Some $669,812 will go into the state's school fund; $27,772 in interest will be prorated between the Medicaid program and the school fund; and $1.6 million goes back to the federal government. The state's Medicaid program is both state and federally funded. Cephalon recently also payed $431 Million to settle whistleblower suits.

Top Ten decisions of 2008?

A few days ago, I posted a link to Drug & Device Blog's top ten list of the worst (according to them) decisions of the year. Today they have posted their top ten best here. As you read these lists, remember what I stated in my previous post, though. D&D Blog is a pro-defendant site. I don't think any opinion that favors plaintiffs/consumers' rights made the "good" decision list. Consumer activists would probably consider the "worst" list to be the "best" and vice versa.... Regardless of their political point of view, the lists are important and instructive.

Monday, December 29, 2008

More on Obama's election and tort law

There is an interesting article in the Los Angeles Times hoping that the Obama administration will usher in a new era of consumer protection by improving the Consumer Product Safety Commission and the Food and Drug Administration. The article is available here.

Friday, December 26, 2008

Government liability for death of someone under the influence?

In a case with facts very similar to those of Deucer v. Vecera, a case familiar to anyone using the Prosser on Torts casebook, the Illinois Appellate Court has decided that the city of Herrin, Ill. does not have immunity in a case brought by the parents of a teenager who died after the police released her even though she was clearly intoxicated. Interestingly, the Illinois Court reaches the opposite conclusion than that of the Court in Deucer. According to a report in today's Chicago Daily Law Bulletin, a police officer arrested an 18 year old around 3:30 a.m. for underage drinking. At the time, she was said to be ''incoherent'' and had a blood-alcohol level of 0.18 percent. The police detained the teenager, but later released her before someone arrived to pick her up. About 20 minutes later, the teenager was killed in a traffic accident while walking on a nearby street. The question for the court was whether the city has absolute immunity under section 4-102 of the Governmental and Governmental Employees Tort Immunity Act or whether the complaint fits within the exception for willful and wanton misconduct provided by section 2-202. Section 4-102 of the Tort Immunity Act provides, in pertinent part that "neither a local public entity nor a public employee is liable … if police protection service is provided, for failure to provide adequate police protection or service." This provision provides immunity for discretionary conduct and essentially protects the right of the government to decide how to best allocate its resources. Likewise, section 4-107 of the Tort Immunity Act provides that "neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest or by releasing a person in custody." Section 2-202, on the other hand, provides that "a public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct." Thus, the key is whether the police officers acted in the process of executing or enforcing any law and the Court held that they did. Thus it concluded that section 2-202 applies and that the complaint created triable issues of fact concerning liability for willful and wanton acts of the police.

Wednesday, December 24, 2008

Important safety warnings!

It is Christmas eve and I am up late putting together some toys for our kids. I just came across a little sheet of paper that came with one of them. It says "Important safey instructions" at the top, so being the reasonable prudent person that I am, I read them. It is a list of 10 instructions. I found the first 4 very interesting. I am not making this up: Important Safety Instructions: 1. Read these instructions. 2. Follow these instructions. 3. Keep these instructions. 4. Heed all warnings. 5. .... and on it goes from there...

Tuesday, December 23, 2008

Soldiers suing for exposure to toxins in Iraq

Sixteen Indiana National Guard soldiers sent to Iraq have filed suit against the Houston-based military contractor Kellogg Brown and Root (KBR), for allegedly exposing them to a cancer-causing toxin called hexavelent chromium, the same toxic substance that poisoned homeowners in Hinkley, California, and was made famous by legal activist, Erin Brockovich. Click below for a video of a report on CBS News last night (after a brief commercial) in which they say depositions of KBR employees show that the company knew about the presence of the toxin as early as May 2003.
Watch CBS Videos Online Thanks to PopTort blog for the story, available here.

Top Ten decisions of 2008?

Drug and Device Law Blog has published its "Top Ten Worst Decisions" of 2008 list. As you review their list, remember that the blog is, as the ABA Journal has called it, a "defense oriented blog." Regardless, the list, and their comments and links, are interesting and provide a lot of important information. Read them and make your own decisions on whether the cases are good or bad. The article can be found here.

Monday, December 22, 2008

Good samaritan can be sued for negligence

In a case that has attracted some national media attention, the California Supreme Court has ruled that a woman who pulled a co-worker from a crashed vehicle isn't immune from civil liability because the care she rendered wasn't medical. The case is Van Horn v. Watson. In a way, this decision is nothing new. The vast majority of jurisdictions still recognize the "no duty to help" doctrine. It has forever been criticized because it discourages strangers from providing help to people in need, but it continues to be the rule. On the other hand, to counter the effect of this doctine, most states have enacted "good samaritan statutes" that protect medical professionals --usually specifically defined by the statute -- from liability. The idea behind this approach is essentially to make sure that emergency care is left to medical professionals. What may be different in the decision by the California Supreme Court is that according to reports (I have not read the decision yet), the law there extends to "medical care" rather than to "medical professionals." In other words, if the reports are correct, the law in California offers immunity depending on the type of conduct involved rather than on the training of the person providing it. Again, I have not read the case or researched the law in California, but if that is an accurate statement, then that is different. reports that in a concurring and dissenting opinion, Justice Marvin Baxter called the majority's reasoning an "arbitrary and unreasonable limitation" to the state's Good Samaritan law. "In the majority's view," Baxter wrote, "a passerby who, at the risk of his or her own life, saves someone about to perish in a burning building can be sued for incidental injury caused in the rescue, but would be immune for harming the victim during the administration of cardiopulmonary resuscitation out on the sidewalk." There are reports on this case in the Los Angeles Times and

Thursday, December 18, 2008

Top torts stories of the past week

Check out the most recent "Personal Injury Roundup" at TortsProf Blog, which lists links to the most interesting stories from the past week.

Wednesday, December 17, 2008

Keith Olbermann on the Bush administration's approach to pre-emption

Check out the following 6 minute piece on pre-emption from Keith Olbermann's show "Countdown."
Thanks to The Pop Tort Blog from bringing this to my attention.

Tuesday, December 16, 2008

Supreme Court rejects appeal in downwind radiation case

The U.S. Supreme Court has rejected an appeal by several contractors, potentially clearing the way for a settlement with as many as 2,000 people exposed to radiation during the Manhattan Project and the early years of the Cold War. The contractors - E.I. Du Pont De Nemours & Co., General Electric Co. and UNC Nuclear Industries Inc. - were challenging a ruling by the 9th U.S. Circuit Court of Appeals last spring that sided largely with the plaintiffs. The people exposed to radiation lived in eastern Washington, eastern Oregon and Idaho, down wind of the Hanford nuclear reservation, as the U.S. government was developing the first atomic bombs in the 1940s. They've spent nearly two decades trying to win compensation for thyroid cancer and other conditions that they say were caused by the exposure. The Supreme Court's one-line denial of the appeal raised the downwinders' hopes of a global settlement of the case. If you are interested in this topic, I highly recommend a book called "Justice Downwind" by Howard Ball. It tells the story of a similar case brought by downwinders in Nevada. The book's backcover provides the following summary: "Concerned with the hazards of cancer and radioactive fallout, 1,100 citizens living downwind of the Nevada Testing Site, in an effort to expose the Atomic Energy Commission's negigence in implementing the testing, sued the government for causing injury and wrongful death. Fearful that public outcry might shut down the program, AEC officials, during the 1950s, downplayed any suggestion that the testing program might endanger the health of persons living downwind of the testing site. By 1978, scientific studies had demonstrated associations between the epidemic of childhood leukemia and other cancers in the region and radioactive fallout. Pressing their case in the courts and in Congress, the downwind plaintiffs found themselves up against a government that remains even today reluctant to admit its responsibility."

Illinois State Bar Association proposes law for payment of pre-judgment interest

The Chicago Daily Bulletin reports that the assembly of the Illinois State Bar Association has approved draft legislation that would require the payment of prejudgment interest to successful plaintiffs in all civil litigation in which money damages are sought. According to an ISBA statement describing the draft legislation, ''a prejudgment interest statute would encourage quick evaluation and early settlement of civil cases. ''It is legislative recognition that the delay awaiting a money judgment is also a delay in the value of the judgment that is ultimately received. Sixteen other states have already done this.'' Not surprisingly, the proposed legislation is vigorously opposed by the Illinois Association of Defense Trial Counsel.

New York Times Op-ed on Supreme Court's decision

The New York Times has an op-ed piece on yesterday's Supreme Court ruling that federal labeling requirements do not preempt the right of plaintiffs to sue in state court alleging false advertising in the marketing of "light" cigarettes. Full article available here.

Monday, December 15, 2008

Mattel to pay millions over lead tainted toys reports that Toy maker Mattel Inc. will pay $12 million to 39 states to settle an investigation over Chinese-made lead-tainted toys shipped to the U.S. in 2007. As part of the agreement, Mattel also agreed to lower the acceptable level of lead in toys shipped to the states to 90 parts per million which will be the federal standard starting next year. See the full story here.

Comments on the Supreme Court "light" cigarette decision

1. Tort Deform Blog has a comment here. 2. Pop Tort Blog has a comment and other links here.

Supreme Court rules federal cigarette labeling law does not preempt claims for deceptive marketing of "light" cigarettes.

In a surprising ruling for the plaintifs, the Supreme Court (5-4) has ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote "light" and "low tar" brands. has reports here and here. The Court's opinion is available here.

Friday, December 12, 2008

Top torts stories of the past week

Check out the most recent "Personal Injury Roundup" at TortsProf Blog, which lists links to the most interesting stories from the past week.

Wednesday, December 10, 2008

Railroads to get immunity from state tort actions

Starting Dec. 26 railroad companies will be immune from state tort lawsuits under a so-called "midnight regulation" that the Transportation Safety Administration has adopted. The new regulation is included in the final rule of the rail transportation security measure that the TSA, which is part of the U.S. Department of Homeland Security, published in the Nov. 26 Federal Register. The rule is based on the premise, adopted by the Bush administration in numerous other regulations, that state tort lawsuits are impliedly pre-empted by federal law. However, the American Association for Justice, a Washington-based trial lawyers group, is working on persuading Congress to strike the pre-emption provision next year.

Ban on direct to consumer advertising?

Rep. Henry Waxman (Calif), the new chairman of the House of Representatives Energy and Commerce Committee, stated on Monday he would like to pursue the idea of giving regulators the power to ban advertisements to consumers when a new medicine first reaches the market and risks are not fully known. See the full story here. Thanks to Sheila B. Scheuerman of TortsProf Blog for the update.

Monday, December 8, 2008

Corboy on caps on damages in Illinois

Yesterday, the Wall Street Journal published the following letter from Phil Corboy, President of the Illinois Trial Lawyers Association Chicago, on the challenge to Illinois law that caps recovery in medical malpractice cases: "In your Dec. 1 editorial "Messing With Malpractice Reform," (available here) you urge the Illinois Supreme Court to "side with the patients and the rule of law" in considering a case that could overturn the state's cap on damage awards. Yet the editorial never mentions the patient who is at the center of that case. She is a three-year-old little girl named Abigaile LeBron, whose life has been forever changed by the severe brain damage she suffered as a result of medical negligence. It is likely that Abigaile will have to be fed through a tube for the rest of her life. She will never develop cognitively or physically as her peers do. And she will likely never live independently. It is inarguably a very painful tragedy for Abigaile and all who know and love her. The insurance industry and its brethren in the tort reform world have argued that Abigaile's compensation for lifelong disability, pain and suffering should be arbitrarily limited, despite what a jury of average citizens may decide. The question before the Illinois Supreme Court is whether the Illinois Constitution allows Abigaile's rights to be limited in this fashion to the benefit of insurance company profits. Twice before, our state's highest court has decided in favor of patients and against the insurance companies that would limit these rights to protect their own profits. No new arguments have been offered by the insurance industry. You argue that a reduction in malpractice premiums and the return of doctors to the state have resulted from the law containing caps. Nothing could be further from the truth. Not one case has been litigated under the new cap in Illinois. The simple fact is that those positive developments have resulted from strong, long-suppressed insurance reforms in the legislation. That law has now forced malpractice insurance companies to provide greater transparency on rate-setting and payouts that has in turn spurred competition, motivated more companies to enter the marketplace, and lowered premiums for doctors. Important to the discussion for your readers is the additional fact that Illinois' largest malpractice insurer has reported that payouts have remained flat for the past 13 years. By the way, it's the same insurance carrier that admitted during the run-up to this legislation in 2005 that capping awards would not guarantee lower premiums for its doctors. The Illinois Constitution was put in place to ensure individual rights and freedoms. While corporations and profit-hungry executives often stack the decks against individuals in the marketplace and the halls of government, the courtroom can still provide all parties with a level playing field. The Illinois Supreme Court will now decide whether that standard remains in place for patients like Abigaile LeBron. You should let it do its job."

Binding mandatory arbitration

Is binding mandatory arbitrarion fair? Tort Deform Blog concludes: "die-hard corporatists insist that pre-dispute binding mandatory arbitration is . . . a wonderful thing… but what they mean is, it’s a wonderful thing except when corporations can’t use it to bully people around. When they’re used in relatively more equal power relationships, they’re no good because corporations can’t game the system to their advantage. In those instances, corporations prefer the public courts." See the full post here.

Advice to avoid litigation

There is a good short comment on Drug and Device Law Blog today with advice to companies on how to avoid mass tort litigation. The article is available here.

Friday, December 5, 2008

Liability of establishment with no liquor license for injury caused by someone who gets drunk with own booze?

The Illinois Appellate Court announced today its decision in an interesting case on the issue of liability of a third party for damages caused by a drunk driver. In this case, two individuals (John H. and John C.) went to an establishment that does not have a liquor license but that encourages its patrons not only to bring their own hard liquor (no beer allowed), but to consume it in large quantities. To make a long story a bit shorter, the two individuals drove to the place and proceeded to get very drunk. When one of them got sick in the bathroom, management escorted them out, got their car (which they had parked for them in the first place), put them in the car and told them to leave. John H. was driving. A few miles down the road, he left his lane and collided head on with a car driven by an 81/2 month pregnant woman. She died. John C. also died. The more interesting question in the case is essentially whether a business with no dram shop liability (because it is not licensed to provide alcohol and in fact did not provide it) can be found liable for the injuries caused by a patron that the business encouraged to consume alcohol. The court says yes. First, the court concludes that "encouraging and facilitating [the driver's] drinking, ejecting him from the club, and placing him behind the wheel with the requirement that he drive his car away . . . and onto the public roadways" constitute substantial assistance under section 876 of the Restatement (liability when a person gives substantial assistance or encouragement to another knowing that the other's conduct constitutes a breach of duty). Then the court concludes that the conduct of the defendant was a proximate cause of the injuries. The proximate cause analysis is correct in my opinion. In the end, the question is whether the injury is a foreseeable consequence of the risk created by the negligent conduct. The negligent conduct is facilitating the consumption of alcohol and then encouraging someone who is known to be intoxicated to drive. Once argued this way, it is easy to argue that the injuries are a foreseeable consequence. All of this, however, is just a preamble to my point here. This case could be important for something it does not talk about. At some point, someone will make the exact same argument the court uses in a case involving a social host -- friends and neighbors who do provide alcohol at their private parties. The opinion is available here.

Toxic Toys

Here is a report from The PopTort on toxic toys and the recent ruling of the Conusmer Product Safety Commission to allow the sale of products containing lead past the date set by the Consumer Product Safety Improvement Act: "A wave of toxic-toy recalls last year gave rise to federal legislation which was signed into law this past summer (“The Consumer Product Safety Improvement Act of 2008”). Among other things, the law “permanently bans the sale, after February 10, 2009, of toys and child care products that contain certain phthalates and lead.” Nevertheless, according to the consumer advocacy group Public Citizen, “In a letter dated November 13, 2008, the law firm Arent Fox, on behalf of unidentified [“wholesale and resale”] clients, asked the CPSC to only apply the U.S. ban to the production - and not sale - of toys with phthalates. In a legal opinion published only two business days later, on November 17, 2008, the CPSC General Counsel agreed. As a result, manufacturers can stockpile toys and child care products with the banned phthalates right up to the date of the ban, and then sell them to consumers long after the ban was supposed to go into effect.” Thankfully, the Natural Resources Defense Council (NRDC) and Public Citizen are challenging the CPSC’s reckless decision in federal court, alleging the CPSC “is failing to carry out its role in implementing the phthalates ban” which will result in “harm to consumers exposed to the chemicals.” "Selling millions of toxic toys to kids is not the way to dispose of them, as the law clearly states," said David Arkush, director of Public Citizen’s Congress Watch division which, along with NRDC, was heavily involved in lobbying Congress for stronger product safety rules. "It’s not only immoral - it’s illegal. It is horrifying that the federal agency charged with protecting consumers is telling the industry it can dump chemical waste on toy-store shelves."

Sixth Circuit holds The Vatican can be sued for sexual abuse

In a landmark ruling yesterday, the Sixth Circuit concluded that the Vatican could be held liable for negligence in sexual-abuse cases filed in the U.S. It is the first time a circuit court reached that conclusion, and the opinion is considered a breakthrough by those allegedly abused by priests. The opinion is available here. Click here and here for reports from the Wall Street Journal. Originally posted by Sheila B. Scheuerman on TortsProf Blog.

Check out the most recent "roundup"

Check out the most recent "Personal Injury Roundup" at TortsProf Blog, which lists links to the most interesting stories from the past couple of weeks. The stories are organized in the following categories: Reform, Legislation, Policy; New Lawsuits; Trials, Settlements & Other Ends; Appeals; Damages; Miscellaneous

New case challenges damages caps in Texas

Texas tort reform statutes limit "pain, mental anguish, impairment and disfigurement damages" to $250,000 per defendant. The plaintiffs in a recently filed medical malpractice case arising out of the injuries to an infant claim that "this arbitrary cap is a denial of due process to the Plaintiff and a violation of the United States and Texas Constitutions … and the rights to due process." Story available here. Originally posted by Sheila B. Scheuerman on TortsProf Blog.

Thursday, December 4, 2008

Court Orders Unsealing of Settlement in Stadium Liability Case

An Appellate Division Court in New Jersey has held that secrecy must be lifted on how much a Giants Stadium vending company agreed to pay last year to a girl whose paralyzing injuries in a crash with a drunken fan. The Court held that the lower court judge erred when he sealed all records of the June 2007 settlement and subsequent proceedings to protect the privacy of plaintiff. The three-judge appeals panel agreed with an open public record's advocacy group that moved for the unsealing, finding the public interest trumps such privacy concerns. The (not yet published) opinion is available here: Verni v. Lanzaro. UPDATE: reports now that the unsealed documets reveal that the beer refreshment vendor at Giants Stadium agreed to pay $25 million to settle the case. The full story is available here.

Wednesday, December 3, 2008

How important was Chevron's win?

Professor Anthony Sebok (Cardozo School of Law) writes a very good column for on Torts issues. His most recent is about yesterday's victory for Chevron in Bowoto v. Chevron. He states: "Yesterday, a federal jury in San Francisco rejected every claim made by a group of Nigerians who had sued Chevron for its role in aiding and abetting a brutal 1998 attack by Nigerian government forces. The case, Bowoto v. Chevron, has been watched closely by both supporters and critics of the Alien Tort Statute ("ATS"), the law under which this suit was brought. In this column, I will argue that the verdict is much less significant than it seems, and that critics of the ATS should be wary of reading too much into Chevron's victory." The full comment is available here.

Tuesday, December 2, 2008

Victory for Chevron

A nine-member jury handed oil giant Chevron Corp. a complete victory Monday in a high-stakes battle by Nigerian villagers who accused the company of cooperating with the Nigerian government in human rights abuses of protesters at the company's off-shore Nigerian facilities. The National Law Journal has the full story here. also has a report here.

Thursday, November 27, 2008

Jury to decide if Chevron is liable for aiding and abetting under Alien Torts Claims Act

A San Francisco jury begins deliberations in a precedent-setting civil case – Bowoto v Chevron - that seeks to hold US oil giant Chevron liable in the United States for human rights abuses in Nigeria after closing arguments are heard on Tuesday, November 25, 2008 in courtroom 10 of the Federal Building. The jury will have to decide if what happened constitutes aiding and abetting on the part of Chevron in the death of two protestors, and the injury and subsequent torture of others who peacefully protested the destruction of their environment and livelihood caused by Chevron's oil production activities in May of 1998. See the full story here. Thanks to Sheila B. Scheuerman who originally posted the story on TortProf Blog.

Wednesday, November 26, 2008

New NHTSA rule provides immunity from state tort suits related to seatbelt use

The National Law Journal reports that a group of consumer and trial lawyer organizations have filed a petition asking the National Highway Traffic Safety Administration (NHTSA) to reconsider a final rule on designated seating positions in vehicles because it includes language that would give vehicle manufacturers immunity from state tort suits related to seatbelt use. Previously, NHTSA placed the preemption language in the preamble, which generally is acknowledged to be advisory in nature only. But placement of the language in the text gives it force of law. The final rule takes effect on Dec. 8. Full story available here.

Metrolink denies liability for Sept. 12 fatal crash

As reported in the National Law Journal: LOS ANGELES — Metrolink, the regional rail agency for Southern California, has denied liability for the Sept. 12 crash that left 25 people dead and dozens more injured, according to court documents filed on Nov. 21. Full story available here.

Monday, November 24, 2008

The Vaccine Injury Compensation Program: A failed experiment?

On November 18, the President of the National Vaccine Information Center made a presentation before the US Dept of Health Advisory Commission on Childhood Vaccines in which she argued that the no-fault approach created by the National Childhood Vaccine Injury Act of 1986 has been a failure. In her presentation she argues that "[t]he law was passed by Congress at the specific request of pharmaceutical companies threatening to stop making vaccines without product liability protection, as well as organizations representing pediatricians reluctant to give childhood vaccines without liability protection" and that those fighting for the rights of vaccine consumers and the vaccine injured, agreed to work on the Act because of promises made by Congress that the proposed legislation would provide a fair, expedited, non-adversarial, less traumatic, less expensive no-fault compensation alternative to civil litigation. She concludes, however, that those goals have not been reached. The full text of her presentation is available here. Originally posted by William Childs on TortsProf Blog

Friday, November 21, 2008

More on Obama's election and tort law

Professor Anthony Sebok (Cardozo School of Law) writes a very good column for on Torts issues. His most recent is about the likely effect of the Obama administration on Tort law. Sebok points out that while in the Illinois state legislature, Obama voted in favor of caps on non-economic damages (such as pain-and-suffering damages) in medical malpractice cases and co-authored an article with Hilary Clinton recommending an alternative dispute resolution mechanism for medical malpractice claims. Thus Sebok predicts that "Obama will not instinctively defend the civil justice system, and that he may even be open to experimentation that limits the right to sue, especially in the context of medical malpractice claims." Ultimately, however, the real question is not what Obama will want to do with the civil justice system, but what Congress will want to do with it. Sebok believes the Senate may want to pass some pro-plaintiff legislation in the area of federal preemption of state pharmaceutical cases if the Supreme Court decides to expand the scope of implicit preemption involving drugs approved by the FDA. See the full column here. Also see Sebok's comments on Wyeth v. Levine here and here.

Scientists Accuse F.D.A. Officials of Misconduct

Here is another story on the allegations that top federal health officials engaged in serious misconduct by ignoring concerns of scientists at the Food and Drug Administration and approving for sale unsafe or ineffective medical devices. See story here.

Professor Richard Esptein's comments on Wyeth v. Levine

Professor Richard Epstein argues that once the Food and Drug Administration has approved the warnings about drugs licensed for sale, a plaintiff should not be allowed to bring a cause of action for damages in state court on the ground that those warnings are inadequate. See his comments here. Thanks to William Childs from TortsProf Blog for pointing out this article

Oklahoma Supreme Court finds portion of tort reform statute unconstituonal

The Oklahoma Supreme Court has struck down another portion of a tort reform law passed in 2003. The state’s highest court found the statute of limitations imposed only on medical negligence lawsuits is an unconstitutional special law. See story here. Thanks to William Childs from TortsProf Blog for pointing out this article

Wednesday, November 19, 2008

Video about preemption case Wyeth v. Levine

Go to this link for a 20 minute documentary on Wyeth v. Levine and the preemption issue featuring interviews with Diana Levine, the plaintiff. For a PBS spot on Wyeth go here. For more information on Wyeth go here and here.

Tuesday, November 18, 2008

Congress investigates FDA review process

Pharmalot reports that the House Energy and Commerce Committee is investigating allegations that managers at the FDA Center for Devices and Radiological Health have "corrupted and interfered with the scientific review of medical devices." Read the full story here.

Monday, November 17, 2008

Important new case from Illinois Supreme Court on Products Liability

The Illinois Supreme Court recently decided Mikolajczyk v. Ford Motor Co. (available here), in which the court considered two questions: (1) whether a defendant is entitled to an instruction on the risk-utility test over the objection of a plaintiff whose chosen method of proof is consumer expectation and (2) if both consumer-expectation and risk-utility instructions are given and the tests yield inconsistent answers, which result prevails? The court held "that both the consumer-expectation test and the risk-utility test may be utilized in a strict liability design defect case to prove that the product is 'unreasonably dangerous,' and that "[w]hether an instruction is required on either test or both tests will depend on the issues raised in the pleadings and the evidence presented at trial, and if "both tests are employed, consumer expectation is to be treated as one factor in the multifactor risk-utility analysis." The court declined to adopt section 2(b) of the Restatement (Third) of Torts: Products liability (1998) as the exclusive test for resolving design defect issues because section 2(b) would alter the "unreasonably dangerous" element in Illinois design defect cases by requiring the plaintiff to prove the existence of a feasible alternative. Whether to adopt a requirement of a reasonable alternative design has been a big debate since it was proposed as part of the process of adopting the Restatement 3d. It was not the majority view at the time and, to my knowledge, it still isn't. In the end, the Illinois Supreme Court adopted the view that a desing defect must be determined by examining a number of factors including an assessment of risks and benefits and consumer expectations.

Sunday, November 16, 2008

Judge Throws Out Paxil Test Case

One of Philadelphia's bellwether cases in litigation over whether the maker of the drug Paxil failed to warn about an increased risk of suicide from its drug has been dismissed following a Common Pleas Court judge's decision to grant summary judgment on statute of limitations grounds. See story here.

Friday, November 14, 2008

Brothers sue over tiger attack

The San Jose Mercury News reports that the two brothers mauled by a 250-pound Siberian tiger at the San Francisco Zoo in December have followed filed a lawsuit that blames city officials and the zoo for their injuries and also seeks damages for defamation in the aftermath of the international incident. The tiger also killed 17-year-old Carlos Sousa Jr., whose family had already filed a lawsuit over the attack. The tiger was eventually shot and killed by San Francisco police. The brothers maintain the zoo and the police were negligent in causing the attack and failing to respond adequately to the escape. In particular, the lawsuit alleges the zoo contributed to the danger by housing the tiger in an enclosure that did not meet height requirements recommended in national zoo standards. The lawsuit also alleges the brothers were defamed by zoo representatives after the attack in statements blaming them for taunting the tiger and suggesting they instigated the incident. San Francisco Zoo officials have denied liability for the attack.

Missouri court approves punitives 75 times the amount of compensatory damages

A Missouri Court of Appeals approved a $3.75 million punitive damage award — 75 times the amount of the compensatory damages — in a sexual harassment case filed by a female worker at a Kansas City, Mo., auto parts warehouse. Although the jury initially imposed a $6.75 million punitive damage award, the trial court cut the amount to $450,000, nine times the $50,000 punitive damage award. The intermediate state court of appeal found that too small, but the original award too large, and offered its own punitives award of $3.75 million for what it called "boorish" behavior by a supervisor that was ignored by a company with 100,000 employees in the United States. for the full story go here.

First lawsuits filed over Minnesota bridge collapse

The first of what is expected to be many lawsuits stemming from the collapse of a Minnesota freeway bridge, which killed 13 people and injured 150, was filed on Nov. 12. The plaintiffs allege that URS Corp., which was under contract with the Minnesota Department of Transportation to conduct a "fatigue analysis'' of the bridge, failed to take action despite documented bulging and buckling of the bridge.

Wednesday, November 12, 2008

Ninth Circuit Imposes 3 to 1 Ratio on Punitive Damages Award

On Friday, the Ninth Circuit issued its opinion in Southern Union v. Irvin (available here). The court previously had vacated and remanded the original punitive award, which was 153 times the compensatories. On remand, the trial court reduced the punitive damages award to $4 million, and the defendant appealed again. This time the Ninth Circuit decided that 3 to 1 was the right ratio and reduced the punitive damages award to just over $1.8 million. For an article on the decision go here. --posted by Sheila B. Scheuerman on TortsProf Blog.

Tuesday, November 11, 2008

Florida High Court to Decide if Smokers Must Find Safer Cigarette for Damages

The Florida Supreme Court is considering whether "plaintiffs who sue companies over design defects in inherently dangerous products such as cigarettes must find a safer design option to prove liability." The question of whether to require a plaintiff to show a "reasonable alternative design" was a big issue during the process of adopting the Restatement Third. Most states at the time did not require it. The Restatement eventually adopted a definition of design defect that depends on the existence of an alternative. Requiring proof of an alternative design makes it much more difficult for plaintiffs to prove their case, a fact that reportedly worries Chief Justice Peggy Quince. According to a story in, she expressed concern that a requirement for finding an alternative safe option would put consumers in "a very, very difficult position." "How in the world is the consumer going to come up with an alternative design?" Quince asked. She said it would require plaintiffs to hire engineers to find safer ways to design alternatives to products that injured them. Full story available here.

Brand Name Manufacturer Liable for Generics Made by Competitor

The California First District Court of Appeal has held that drug manufacturers can be held liable for harm caused by a competitor's generic version of the same drug. The opinion is available here. For comments on the opinion go to these sites Drug and Device Law Pharmalot San Francisco Chronicle

Monday, November 10, 2008

National Law Journal Op-ed on Preemption

The National Law Journal has published a very good op-ed piece on the issue of preemption, available here. Here is an excerpt: Earlier this year, in Riegel v. Medtronic, the U.S. Supreme Court held that the 1976 Medical Device Amendments to the Food, Drug, and Cosmetic Act pre-empt injured consumers' rights and immunize medical device manufacturers from liability. Now, in Altria v. Good and Wyeth v. Levine, the court will decide whether to expand federal pre-emption and grant tobacco and drug companies immunity by judicial fiat, too. If it does, it will be making the same fatal mistake it made in Riegel — ignoring Congress' intent. . . . . Finding pre-emption eliminates the protection consumers had before Congress acted and the incentives for product safety that the risk and cost of liabiltiy create. That's the mistake the court made in Riegel, which gives the manufacturers a license to kill. If the court compounds it in Altria and Wyeth, more consumers will die. Ignoring Congress' intent in these cases is truly a fatal mistake.

Malpractice Claim Against Criminal Defense Counsel Improperly Dismissed

The dismissal of a legal malpractice action brought by a criminal defendant was reversed by the New Hampshire Supreme Court. Get the opinion here. The court determined that a previous case holding that the defendant must prove actual innocence in order to establish malpractice did not apply under the circumstances: ...we conclude that in this case, where the alleged legal malpractice occurred after the plea and sentencing, where the claim is unrelated to any strategic or tactical decision relating to the plaintiff’s convictions, and where the plaintiff does not argue that but for his attorney’s negligence he would have obtained a different result in the criminal case, the legal malpractice action is not barred by Mahoney. Accordingly, we reverse the trial court’s grant of the defendant’s motion to dismiss, and remand for further proceedings consistent with this opinion. The defendant had alleged that his lawyer had filed a motion to withdraw his plea without authorization. (Originally posted by Mike Frisch on Legal Profession Blog)

Friday, November 7, 2008

FDA Preemption Policy Driven By Politics, Not Science

From Public Citizen Blog: Rep. Henry Waxman's Oversight and Government Reform Committee, using internal FDA documents, recently issued a devastating report demonstrating that the FDA was driven by political considerations, not science, in seeking preemption of state-law personal-injury claims involving defective and inadequately labeled prescription drugs.

Most recent preemption case before the Supreme Court

For nearly a century, Americans have been able to sue drug companies for deaths or injuries caused by medicines. Now the pharmaceutical industry and other big businesses are hoping the Supreme Court will sharply curb that right by applying the preemption doctrine. Here are an article and a video from the Wall Street Journal on Wyeth v. Levine, a very important preemption case argued before the Supreme Court earlier this week.

NY Times story about FDA approval process

NT Times story on devices the F.D.A. lets onto the market each year after only cursory review and with no clear evidence that they help patients.

Who will be the new chairperson at the FDA?

Take a look at the following links to articles on the possible future of the FDA: WSJ Health Blog, WSJ Health Blog #2, Legal Times/, WSJ, Drug & Device, Pharmalot

Obama's Election: Tort Law Implications

The WSJ published a piece on election day describing various attorney's perceptions of where the civil justice system is likely to head under President-Elect Obama. High on the list for the plaintiffs' bar is legislatively reducing the scope of preemption.

Welcome to the official blog for Professor Bernabe's Torts Class

Welcome to my new blog on Tort Law. This blog is designed for first semester students at The John Marshall Law School, but hopefully it will provide anyone interested in Tort Law interesting information and links.