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.