Saturday, January 30, 2010

NJ Supreme Court to decide (again) whether attorney can be sued for malpractice in negotiating a settlement that the client agreed to is reporting (here) that the New Jersey Supreme Court has before it a case which raises the issue of whether a client can sue his or her lawyer for malpractice over a settlement that the client originally said was acceptable. This is an interesting question that the court has addressed before, reaching seemingly incompatible results. In Ziegelheim v. Apollo, 128 N.J. 250 (1992), the Court said the "fact that a party received a settlement [in an underlying action] that was 'fair and reasonable' [did] not mean necessarily that the party's attorney was competent or that the party would not have received a more favorable settlement had the party's incompetent attorney been competent…" For this reason, the Court refused to adopt a per se rule barring malpractice actions by clients who later become dissatisfied with their settlements, unless the clients were trying to commit fraud. However, more recently, in Puder v. Buechel, 183 N.J. 428 (2005), the Court held that a litigant who accepted a settlement in an underlying action and who clearly stated on the record that she was satisfied with the outcome was precluded from suing for malpractice. The current case before the court is Guido v. Duane Morris, and it can have very important consequences for all attorneys in the state. The statement quoted above from Ziegeineim v. Apollo makes perfect sense to me. The fact that a client accepts a settlement does not preclude the possibility that an attorney was negligent. However, openning the door to possible liability any time a client changes his or her mind after he or she agreed to a settlement proposed by the attorney can make the attorney's practice more difficult and can, ultimately result in fewer settlements. Attorneys could become reluctant to recommend settlements. At the very least, it would affect the dynamics of the attorney-client relationship. Attempting to reach a compromise between the two precedent cases, the court of appeals in Guido concluded that a malpractice claim could be pursued if "particular facts" support a claim of attorney incompetence. It will be very interesting to see what approach the Supreme Court decides to take. Stay tuned. For more on the story go here. UPDATE - June 11 Last week, the New Jersey Supreme Court issued its decision in Guido v. Duane Morris allowing the legal malpractice suit to go forward holding that "the existence of a prior settlement is not a bar to the prosecution of a legal malpractice claim" arising from the settlement. For more on this story go to

Friday, January 29, 2010

Amazing video

Take a look at this amazing video of a negligent driver going under a bridge. I guess he (or she) did not notice the back of the truck was up. Look carefully at the person in the walkway at the top left hand corner.

This Week's Top Stories

Go here for the list of last week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here for my own selection of top news stories.

Wednesday, January 27, 2010

Possible tort reform in Virginia

The TortsProf Blog is reporting today that Virginia hospitals are supporting General Assembly legislation authorizing a disclosure/early offer pilot program in medical malpractice cases. The House bill "would authorize the state health commissioner to work with private health care facilities to implement a program that calls for full disclosure to patients when things go wrong and a 'pre-claim resolution process' to head off lawsuits." Go to VLW Blog for more on the story (although there isn't much). As I have said many times before, though, the devil is in the details. If done right, reform can be a good thing, but, quite frankly, I have not heard of any "pre-claim resolution process to head off lawsuits" that is not an attempt to make it more difficult for injured victims to get compensation that usually allow negligent or incompetent doctors to escape liability. So I guess we'll have to wait to see what the proposal really is. Thanks to Chris Robinette for the information.

Friday, January 22, 2010

Products liability statistics

Here is a link to some interesting statistics on Product Liability litigation in 2009. Also, here the list of the ten prescription drugs for which direct to consumer ads drove the most web traffic: 1. NuvaRing 2. Latisse 3. Cialis 4. Boniva 5. Abilify 6. Gardasil 7. Yaz 8. Viagra 9. Levitra 10. Lunesta. Go here for the full story.

Another Toyota recall

Toyota has announced another recall involving 2.3 million vehicles after discovering that the accelerator pedals can stick on several popular models, including the Camry, Corolla, Tundra and Avalon. The Toyota recall is separate from an on-going floor mat recall involving 4.2 million Toyota and Lexus vehicles, which was issued because of problems where accelerator pedals were getting caught under the floor mat. Go here for the full story.

FDA issues warnings about Meridia

An ongoing review of the side effects of Meridia, a prescription weight-loss drug that has been linked to an increased risk of heart attack and strokes in patients with a history of cardiovascular disease, has led the FDA to warn against its use for people suffering from heart problems. Go here for the full story. Go here for an article on whether the FDA should just pull Meridia from the market altogether.

This Week's Top Stories

Go here for the list of last week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here for my own selection of top news stories.

Thursday, January 21, 2010

Wrongful death case vs Wal-Mart

An Illinois woman has named Wal-Mart as a defendant in a wrongful death lawsuit filed over her husband’s fatal fentanyl overdose caused by a pain patch he received after a slip and fall at one of the company’s stores. Fentanyl is a powerful opioid pain killer that is often prescribed to patients suffering from chronic, severe pain. It is considered 100 times more powerful than heroine and over-exposure to the fentanyl gel contained in the patch can cause a fatal overdose. Problems with the fentanyl patch have been linked to hundreds of deaths since the brand name Duragesic patch was first introduced by Johnson & Johnson in 1994. The deaths have mostly occurred among those who either used the drug incorrectly or never should have received the powerful painkiller, but there have also been a number of fentanyl patch recalls issued due to various manufacturing defects which allowed the fentanyl gel to leak out of the patch and come into direct contact with the skin. Go here for the full story and links to more information.

Public Citizen petitions FDA for recall of drug Savella

The prominent consumer group Public Citizen has petitioned the FDA to initiate a recall of the fibromyalgia drug Savella, arguing that the drug's risks on the heart and suicide risks outweigh the its benefits. Go here for the full story.

Wednesday, January 20, 2010

Chrysler recall due to brake problems is reporting today that mMore than 24,000 cars and trucks are expected to be part of a Chrysler recall that will be issued due to faulty or missing brake parts that could cause drivers to experience sudden brake failure. The majority of the vehicles being recalled are 2009-2010 Dodge Ram trucks, but the recall also affects some 2010 models of the Chrysler Sebring, the Dodge Avenger and Nitro, and the Jeep Liberty, Commander and Grand Cherokee SUVs. Chrysler notified the National Highway Traffic Safety Administration of the recall this week, saying that a clip retention tab on the brake pedal pin was defective in some vehicles, and not installed at all in others. Go here for the full story.

FDA to consider warnings for tanning beds

Following a World Health Organization (WHO) decision last year to list tanning beds as known carcinogens, the FDA is considering tougher warning requirements in the United States about the potential risk of cancer from tanning beds. For more on the story, go here.

Monday, January 18, 2010

More claims vs Pfizer for smoking quitting drug

Chantix, a popular smoking cessation drug manufactured by Pfizer, Inc., was approved by the FDA in 2006 as a prescription treatment to help people quit smoking. However, shortly after Chantix was introduced, adverse event reports linked the drug to an increased risk of severe psychological side effects, such as depression, suicidal thoughts and other abnormal behavior. More than 50 lawsuits related to the effects of Chantix are now pending. The three more recent ones were filed last week in New York state court against Pfizer. The cases were filed on behalf of individuals who claim that side effects of Chantix caused users to commit or attempt suicide, adding to the mounting number of similar suits filed against the drug maker in both state and federal courts. For more on this story go here.

Article on tort reform

A new article titled Does Tort Law Reform Help or Hurt Consumers? by Prof. Stephen P. King of the Faculty of Business and Economics, Monash University in Australia concludes that the effect of tort law reforms on consumers is "that reforms to limit non-economic losses make consumers unambiguously worse off...Although insurance premiums fall and these reductions are passed on to consumers in full, this gain is more than offset by the increased risk that consumers are forced to bear." The article is available here.

Friday, January 15, 2010

Update on Tort Reform cases in Missouri and Maryland

The PopTort has a short update on cases in Missouri and Maryland that attacked the validity of caps on compensation here.

This Week's Top Stories

Go here for the list of last week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here for my own selection of top news stories.

FDA issues warning letters to several pharmaceutical companies

Earlier this week, the FDA posted warning letters on its site to four drugmakers - Lilly, Bayer, Amylin Pharmaceuticals and Cephalon - for making inaccurate or incomplete statements while promoting their drugs. Amylin, for instance, was tagged because its reps made remarks that Byetta can be used as a stand-alone therapy before the drug received approval. Bayer was chastised for suggesting its Mirena contraceptive women help would feel more romantic or intimate when, in fact, the side effects indicate the opposite may occur. A dosing card for Cephalon’s Treanda, which treats chronic lymphocytic leukemia and non-Hodgkin’s lymphoma, minimized risk and a Lilly promotional piece for its Cymbalta antidepressant minimized risk and overstated efficacy. Go here and here for the full story.

Thursday, January 14, 2010

Contingency fees might be coming to the UK

Tort reformers in the US often suggest that we should do away with the use of contingency fees and adopt the "loser pays" system typically used in England. This is so because without contingency fees many, if not most, victims of accidents would not be able to find representation and would be unable to recover compensation for their injuries. However, the attack on the validity of the contingency fee system may now be substantially weakened by the fact a recent report prepared at the request of the English Judiciary has concluded that contingency fees should be allowed in the UK. In what one commentator called "the most controversial of all his recommendations," Lord Justice Jackson's Final Report proposes that lawyers be allowed contingency fees, acknowledging that the "arguments in favour of contingency fees ... outweigh the arguments against." Go here for the full story by Go here for a copy of the report itself. Go here for links to the preliminary drafts of the report.

Should soldiers be allowed to sue private companies for injuries suffered during military service?

Last year, I posted a number of comments and updates on the Feres Doctrine which provides immunity to the government for injuries suffered while in the military. (Go to the "military/veterans" section of the blog for all the posts on this topic.) A new lawsuit filed recently will test the extent to which the doctrine should also protect private companies that work under contract with the government in war zones around the globe. The lawsuit was filed by a group of Indiana National Guardsman who allege that a mission to help clean up a water treatment plant in southern Iraq left them with fatal illnesses. The lawsuit argues that oil company KBR Inc. "disregarded and downplayed" the fact that the site at Qarmat Ali was coated with the hazardous chemical sodium dichromate and that, as a result, the soldiers suffered "unprotected, unknowing, direct exposure to one of the most potent carcinogens and mutagenic substances known to man." In products liability cases, courts have consistently held that government contractors are protected from liability if they can show that the product in question was manufactured following specific specifications requested by the government. It will be interesting to see if the court in this case follows this line of cases or creates a distinction. Go here for the full story.

Taser tort?

While visiting the Kankakee Junior High School, a police officer tasered 3 boys to demonstrate how a taser works. One of the kids had to be rushed to the hospital. For the full story, click here. For links to other stories on police officers using tasers for fun, go here, here, here and here.

Wednesday, January 13, 2010

Monday, January 11, 2010

Fifth Circuit Ct of Appeals rejects preemption argument in generic drug case

The U.S. Court of Appeals for the Firth Circuit has rejected the argument by a generic drug maker that federal law preempts a state-law failure-to-warn claim filed by a user of their generic Reglan. The appeal involved a product liability lawsuit against Actavis, Inc., which marketed a generic version of the brand name drug Reglan for treatment of gastrointestinal disorders. The plaintiff claimed that side effects of generic Reglan caused her to develop tardive dyskinesia, which is a neurological condition that causes involuntary movements of the lower face and extremities. A number of similar generic Reglan tardive dyskinesia lawsuitshave been filed in courts throughout the United States. Go here for the full story.

Friday, January 8, 2010

California governor announces tort reform campaign

California's unemployment topped 12 percent in November. So, in his annual State of the State address, republican governor Arnold Schwarzenegger announced a program "aimed at jumpstarting the Golden State's beleaguered economy" by creating or retaining 100,000 jobs. "Creating jobs and getting our economy back on track, protecting education, reforming our tax and pension systems and putting an end to our boom and bust budget cycle must all be priorities", he said. This makes sense were it not for the fact that he added that the top priority for his administration was, you guessed it, "tort reform." This is bad news for consumers and victims of malpractice in California, which already has a cap on non-economic damages in med-mal cases. Go here for the story. Thanks to the TortsProf Blog for the information and link.

Lawsuit filed for taser caused death

A few days ago, I reported that the 9th Circuit Court of Appeals recognized a cause of action for injuries caused by a police officer using a taser-gun. (See here and here.) With that decision now in the books and given the many reports we keep getting of inappropriate use of such weapons, I am sure we will begin to see more claims filed. Here is an example, reported by The family of a 33 year-old doctor who died after being shot with a stun gun by Nevada Highway Patrol officer has filed a lawsuit in the U.S. District Court in Las Vegas against Taser International, alleging that the stun gun maker failed to adequately warn about the potentially fatal effects of Tasers. Go here for the full story.

Tuesday, January 5, 2010

Is a warning that a drug may cause cancer in dogs adequate notice that it may cause cancer in humans?

The Drug Recall Lawyer Blog is reporting today on an interesting case in which the title of this post is the key issue. Go here for the full story.

In this case, the plaintiff was on hormone therapy, including a drug called Provera for ten years, through three different physicians. Part of this time, she took Provera (a progestin) in combination therapy with Premarin (an estrogen). The label for Provera, inserted in the Physicians’ Desk Reference by Pfizer, included the following: Beagle dogs treated with medroxyprogesterone acetate [the active ingredient in Provera] developed mammary nodules some of which were malignant. Although nodules occasionally appeared in control animals, they were intermittent in nature, whereas the nodules in the drug-treated animals were larger, more numerous, persistent, and there were some breast malignancies with metastases. Their significance with respect to humans has not been established.

Based on this warning, Pfizer tried to claim that Plaintiff was on notice that the drug could have caused her breast cancer more than two years before she filed the lawsuit (and, more than two years before a study showed the cancer risks with respect to humans).

The jury decided for the plaintiff, but the court entered a judgment notwithstanding the verdict. However, on December 31, the Superior Court of Pennsylvania (Pennsylvania’s first level appellate court) decided in Simon v. Wyeth Pharmaceuticals, et al. that the trial judge's grant of judgment notwithstanding the verdict was erroneous stating that "It defies logic, contrary to the trial court’s suggestion, that Appellant should have been aware of the risk of taking HRT through her own due diligence. It is entirely unreasonable that a lay person, completely lacking in medical training, would make the logical connection between HRT and breast cancer prior to the release of the WHI study, when three trained medical doctors believed that there was no such connection."

In the alternative, the trial court also justified the JNOV by concluding Pfizer’s failure to warn was not a proximate cause of the plaintiff's injury. This conclusion was apparently based on Pfizer's argument that a different warning would have made no difference. If that was the argument, by the way, the issue was not about proximate cause but about cause in fact. But in any case, the appellate court rejected the argument, noting that the doctors behaved much differently with their patients after the release of the study related to possible side effects in humans. One doctor noted in a deposition that, after the study, he “took every single patient off of the pill” There was sufficient evidence to support an inference that a different warning would have made a difference. There are about 1,000 other hormone therapy cases pending in courts around the country.

Parties agree to settle and dismiss case re immunity for prosecutorial misconduct pending before Supreme Court

As I had reported previously (here and here), last November the Supreme Court heard oral arguments in a case called Pottawattamie County, Iowa v. Harrington, which deals with whether prosecutors should be granted absolute immunity for their conduct in the process of investigating (rather than prosecuting) a case. I was eagerly awaiting the decision in this case since it deals with issues I cover in the two courses I teach (torts and professional responsibility). However, it has just been announced that there will be no opinion forthcoming because the parties have agreed to dismiss the case. The county has agreed to pay $12 million to the plaintiffs. The press release from the respondent’s counsel describing the settlement is available here. For a comment on a similar case out of the Second Circuit go here. Thanks to the Legal Ethics Forum for the information.

Another End of the Year Top Ten List

The Drug and Device Law Blog has posted its Top Ten Best Prescription Drug/Medical Device Decisions Of 2009. Obviously, given their pro-defendant bias, I am sure consumer protection groups will claim some of the the cases on the list are probably among the worst decisions of the year, but regardless of the point of view, the list includes some important cases.

Debate on Iqbal continues

As the debate over whether Congress should act to overrule the pleading standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) continues in Congress, the University of Pennsylvania Law Review's online supplement PENNumbra is sponsoring an online debate between Professor Stephen Burbank (Univeristy of Pennsylvania) and the Jim Beck and Mark Hermann (better known as the guys who run the Drug and Device Law Blog). Prof. Burbank argues Congress should act while Beck/Hermann argue Congress should leave the cases alone. Go here for the debate. I have blogged before on the controversy created by the Supreme Court's decision in Ashcroft v. Iqbal related to the level of proof needed to support a plaintiff's claim. See my posts from August 9, August 14, September 8, September 19, September 21 and October 22. Also, adding to this reading list, the Drug and Device Law Blog has posted a list of recent scholarship on the subject here.

Monday, January 4, 2010

China recognizes new torts law

On December 26th, the People's Republic of China enacted a Tort Liability Law which regulates liability and compensation for some injuries, including injuries caused by defective products. Fore more information, comments and links go to TortProfs Blog and ThePopTort blog.

Tort reform reduces number of cases filed. Ok, but is it a good thing?

The TortsProf blog is reporting today on a Nashville Public Radio story (available here) that states that medical malpractice filings declined 60% in 2009. It suggests that this result may be due to the fact that, in 2008, the Tennessee legislature passed a law requiring a third-party certification from a doctor or nurse that a claim has some merit and notice 60 days prior to filing suit. Given the law, the result is not suprising. However, without more it is impossible to determine if the result is a good thing. I have argued before (see here and here for example) that the fact that filings go down after a tort reform measure is approved is not surprising. That is precisely the purpose for which the measure was approved in the first place. The goal of tort reform is to make it more difficult for victims to recover for their injuries (by making it more difficult for them to get to court) or, if they can get compensation, to reduce how much they can recover. Caps on damages are examples of the latter approach to reform; requiring a certificate of merit is an example of the former. However, lowering the number of cases filed is not necessarily is a good thing. It is important to determine why torts cases are down. Tort reformers typically argue that reforms are needed to reduce the numbers of frivolous cases. The problem is that tort reform initiatives don't necessarily work to distinguish the frivolous cases from the valid ones. They simply make it more difficult for everyone. The fact that the number of cases filed has gone down could mean that there are fewer frivolous cases filed (which would be a good thing), or it could mean that there are fewer meritorious cases filed (which is a bad thing). We just don't know; but I suspect it is a combination of both. I prefer a system that allows all meritorious cases a fair chance to go forward even if it means that some frivolous claim might get through too. There are mechanisms in place that work pretty well at reducing frivolous litigation including procedural rules that call for sanctions on the attorneys, professional conduct rules and the basic reality that attorneys are not going to invest time and money in a contingency fee case that has little chance of success. Now, back to the beginning. The Tennessee statute requires certification from a doctor or nurse that a claim has some merit and notice 60 days prior to filing suit. As I said above, this is an example of the approach to tort reform that seeks to make it more difficult for victims to file claims by making it more difficult for them to find representation and to find expert witnesses willing to certify their claims. Here is a link to an article about how although the number of medical malpractice lawsuits is going down, it is not necesssarily for the right reasons. Tort reform statutes are effective in reducing the number of cases, but not necessarily because those cases are frivolous, but because victims with valid claims have a hard time finding representation. The Nashville Public Radio story has another interesting point. The State Senator who sponsored the bill, an attorney who represents doctors and hospitals, admitted that the decline in medical malpractice claims hasn’t resulted in lower malpractice insurance premiums. This is consistent with the data in all other states that I know of where tort reform has been approved. The senator is quoted as saying “Now we’re waiting to see if the medical malpractice insurance premiums, in turn, come down. We’ve only had about a year to watch this, but with 60% fewer cases filed, I’m hopeful.” Given the history in other states, I wouldn't hold my breath.... The story then concludes saying that the senator "says simple laws to weed out what he calls “frivolous lawsuits” could potentially lower costs throughout the healthcare system." For recent articles that debunk this myth go here, here and here, and for more on the subject in general click on the sections on Tort Reform or Medical Malpractice of this blog.

Podcast on tort reform and health reform

Here is a link to a 30 minute podcast on health reform and tort reform. You can listen to it online or download it and listen to it later. One of the panelists is Philip Corboy of the Chicago firm Corboy and Demetrio. Also check out a different podcast called "The Great Debate over Medical Liability Reform" available here.

Lawsuits for deaths in hospital waiting rooms

A few weeks ago, a right wing group opposing health reform organized a protest in Congress during which protestors were to go in and pretend to die while waiting for health services. (Go here for a report on this.) This notion is based on the argument that health care would result in waiting lines so long that people would die because they would not get treatment in time.... as if that was not happening now! About is reporting today that in the last few weeks three new hospital malpractice lawsuits have been filed against facilities that allegedly failed to treat patients in a timely manner, contributing to the deaths of one adult woman and two newborns. Two of the lawsuits were filed against University Medical Center (UMC) in Las Vegas by women who claim that the hospital failed to treat them while they were in labor, resulting in the deaths of their newborn children. A third emergency room lawsuit was filed in late November against San Mateo County, California by the daughter of a woman who says her mother was left to die in a county-run hospital waiting room. Go here for the full story. A study published last November in the Archives of Internal Medicine indicates that problems with delays in emergency room treatment are worsening across the country and these kinds of problems, including waiting room deaths, are examples of why we need more health care reform, not less.

More on the ruling regarding tasers

A couple of days ago I reported that the 9th Circuit Court of Appeals ruled that an officer from the Coronado, Calif. Police Department wasn’t immune to a damages lawsuit cased by a taser. I pointed out that Professor Jonathan Turley has chronicled many reported cases of questionable use of tasers. Yesterday, he published his own comment to the ruling (available here.) For another comment, go to the blog Simple Justice, here.

Saturday, January 2, 2010

Trying to catch up!

For the past few weeks I was pretty busy preparing exams, grading exams and enjoying the holidays, so I was not very good at keeping the blog up to date. I am now back in business and I will try to catch up over the next few days....

Georgia Legislators Ready to Revise Tort Reform Provisions if Needed

The TortsProf Blog is reporting that there are two challenges to Georgia tort reform (originally approved in 2005) pending before the state supreme court. In September, the Court heard arguments in a challenge to the cap on pain and suffering in med mal cases and in October it considered a challenge to a provision that created an enhanced burden of proof in emergency room cases. Apparently, Republican legislators have made it clear that if the court finds either provision unconstitutional, they will move to rewrite it and keep it intact. The Atlanta Business Chronicle has the story here. Thanks to Chris Robinette of the TortsProf Blog for the information and the link to the story.

New reports conclude FDA is inefficient... again

On several occasions I have posted that recent reports have found the FDA is not an efficient or reliable agency. See here, here and here. Now there are two new studies that are highly critical of the way the FDA approves medical devices for human use, saying that the agency requires too few clinical trials, and that often the data in those trials is suspect. Go here for more on the story and links to more information.

Friday, January 1, 2010

"Vicarious liability" for conduct of a dog?

If you live in Wisconsin and allow someone with a dog to live with you, you may well be liable for the dog's bite. The Wisconsin Supreme Court held recently that the homeowner was the "harborer" or "keeper" of the dog (as those terms are used in a specific statute) and for that reason reversed a summary judgment that had been entered in his favor by the lower court. The opinion is available here. This sounds a little bit like vicarious liability because it looks like the possible liability is based on the relationship between the defendant (homeowner) and the owner of the dog, rather than on the ownership of the dog. Thanks to the Legal Profession Blog for the information.