Wednesday, December 29, 2010

Article on lawsuits against gun stores

Here is a link to a story recently published in Wall Street Journal about lawsuits targeting stores for selling guns illegally. There were a few similar cases in the news in 2009. For posts on those cases go here, here and here.

Wednesday, December 22, 2010

Family of Rutgers student who committed suicide files notice of claim against the university

The family of Tyler Clementi, the student who committed suicide in September after video of his inimate encounter with another man was broadcast on the internet, has filed a notice of claim against Rutgers University. The notice contends the university failed to protect Clementi against “unlawful or otherwise improper acts." “It appears Rutgers University failed to act, failed to put in place and/or failed to implement, and enforce policies and practices that would have prevented or deterred such acts, and that Rutgers failed to act timely and appropriately,” the notice reads. has the story. I have not read the notice so I can't comment in detail, but from this short statement it sounds to me the claim is not particularly strong. Unless the University had imposed on itself a duty to protect or help, the court is not likely to find a duty existed because, as you probably know, there is no duty to help at common law. There are many cases out there that have addressed the possible liability of a University to protect its students from dangers and temptation that are inherent in university life. I don't think many have been successful, although I admit I have not researched the question in some time. I wonder what the plaintiffs are going to argue the school could have done - or more accurately, had a duty to do. Also, the defendants are likely to argue that the decedent's decision to commit suicide operates as a superseding cause. Thanks to TortsProf blog for the update and the link.

Tuesday, December 21, 2010

New case combines preemption and "Twiqbal"

When discussing preemption I always tell my students it is a "powerful" defense and I remind them that it has been used to successfully dismiss claims in many different contexts about many different products. So I smiled when I read the first line of a recent post at the Abnormal Use website: "As a defense lawyer, I dream about preemption..." The rest of the post, however, is what is important. It relates to a new case that illustrates what is now becoming a common "one-two punch" by defendants in product liability litigation: preemption and pleading requirements. In this particular case, the court dismissed a claim by applying a combination of preemption and what some people have been calling "Twiqballing" - which is a reference to the consequences of two cases called Twombly and Iqbal on the requirement to plead cases fully. For a list of cases applying this doctrine go here. The case is called Gelber v. Stryker (S.D.N.Y. Sept. 14, 2010) and it involved a claim that a hip replacement device was defective. The court dismissed the claim on preemption grounds based on the rigorous review the FDA had used in approving the device. The plaintiffs tried to reply by arguing that the defendants violated FDA manufacturing requirements but the court held that the plaintiffs had not sufficiently plead claims "grounded in violations of federal law and/or requirements." Thus, the court dismissed the claims, although it will allow the plaintiffs to amend to attempt to meet the pleading requirements. Thanks to Abnormal Use for the information.

American Tort Reform Association releases its "judicial hellholes" report

The American Tort Reform Association, a corporate front group whose mission is to make it more difficult for people to recover compensation for their injuries, has released its most recent report on what they call "judicial hellholes" which is really an attack on judges and juries that have held defendants accountable in court. The report names Philadelphia as the #1 "hellhole" - which means, that according to the report, it is the worst venue for corporate defendants. "Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits," explained ATRA general counsel Victor Schwartz. "The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation. . . ." (Thanks to the TortsProf blog for this quote). As expected, those who oppose tort reform have issued responses, both sarcastic and serious. More surprisingly, even the pro-defendant Drug & Device blog has criticized the report stating that "Philadelphia’s reputation as a pro-plaintiff venue is a bit overblown" and that "ATRA's "litigation tourism" charge [is] particularly unfair."

Hot Coffee at the Sundance Film Festival - UPDATED

I am sure you have heard about the case where a plaintiff was awarded compensation when she got burned by McDonald’s hot coffee. But do you really know the facts of the case? Do you really know why the case is important?

To find out more, maybe you can go to the world famous Sundance Film Festival and check out a new documentary called Hot Coffee that tries to explain why the case is part of the discussion over the civil justice system and how it was used (and misused) for propaganda purposes about tort reform.

For more on the film go to its website here. For more on the story go here. 

UPDATE:  For more comments, mostly critical of the case and the movie, go here, here and here.

Monday, December 20, 2010

Interview with FDA Commissioner Margaret Hamburg

Here are links to three videos of a recent interview of FDA Commissioner Margaret Hamburg by Michael Specter of The New Yorker. Part 1: Regulation and consumer safety Part 2: Label and Marketing Part 3: Personal Medicine

Proposed new rules for vehicle safety

Abnormal Use is reporting that the federal government proposed new rules aimed at improving rear visibility standards for vehicles. The requirements, which the Transportation Department intends to take effect by the 2014 model year, were created to address concerns about drivers unintentionally backing over children. The Associated Press reports that most car makers will comply by installing rear-mounted video cameras and in-vehicles displays, which the governments estimates will add approximately $200 to the cost of each new vehicle. Go here for the full story.

Settlement in cases claiming loss of smell from use of Zicam?

The makers of Zicam have indicated that they are offering a $15.5 million to settle lawsuits brought by consumers who allege that they lost their sense of taste and smell due to the company’s recalled line of nasal sprays. The company said that 1,014 plaintiffs and 1,127 claimants will be eligible to be a part of the settlement. Go here for the full story.

Podcast on injuries to soldiers from exposure to toxins in Iraq and Afghanistan

I have blogged a few times about veterans claiming compensation for injuries related to exposure to toxins and other hazards. In 2008, sixteen Indiana National Guard soldiers filed suit against military contractor Kellogg Brown and Root (KBR), for allegedly exposing them to a cancer-causing toxins. Go here and here for more on that story. More recently, I posted a link to a story on possible health hazards soldiers are getting exposed to in Iraq and Afghanistan as a result of the burning of hazardous and medical waste. Now, the Legal Talk Network has a short radio podcast discussing the most recent developments in this area. To listen to the program go here (if that link does not work for you try here or here).

Duty to the beneficiary of a will?

The Legal Ethics Forum recently reported on a case out of the California Court of Appeal called Hall v. Kalfayan, in which the court decided that "a prospective beneficiary of a will cannot maintain a cause of action for legal malpractice against the attorney who drafted the will but did not have it executed before the death of the testator." According to the court, "[t]he essence of the claim in the case. . . is that [the attorney] failed to complete the new estate plan for Ms. Turner [the client] and have it executed on her behalf by her conservator before her death, thereby depriving Hall [the plaintiff] of his share of her estate." The court based its ruling on the fact that "in the absence of an executed (and in this instance, approved) testamentary document naming Hall as a beneficiary, Hall is only a potential beneficiary." But isn't this a bit of an egg/chicken problem? The plaintiff can't have a cause of action because he is not a beneficiary, but the reason he is not a beneficiary is, arguably, the attorney's negligence. If the lawyer had not been negligent, he would have been a beneficiary... The court seems to realize this problem and makes a point of stating that the client "had not expressed a desire to have a new will prepared and had only limited conversation with [the lawyer] about the disposition of her estate." If that is the case, I can understand the court's reasoning. After all, lots of people can speculate that they would have been beneficiaries had the client drafted a will if the client hadn't made up her mind yet. I have no problem with the court's conclusion in a case like that. But I think it would be wrong to conclude that even if the client had expressed her desire to the lawyer, there is no duty to the beneficiary until the lawyer does the work. Let's assume that the client clearly expresses to the lawyer his desire to prepare a will in which a certain person would be a beneficiary and it is clear that without the will the person would recover less or nothing at all. Let's also assume that it is clear the will must be prepared quickly because the client is in poor health. Then the lawyer is negligent in doing the work, or waiting too long or whatever. Saying that the beneficiary does not have a cause of action because the will was never prepared allows the negligent lawyer to avoid any consequences for the negligence and results in an injury to the beneficiary. I don't see why not recognize a cause of action under those circumstances. It would serve the two main goals of tort law: providing incentives for avoiding negligent conduct and providing compensation to victims of negligent conduct.

Friday, December 17, 2010

Boy left deaf in one ear by line drive sues bat manufacturer

The Chicago Sun Times recently published a story on a lawsuit filed against a baseball bat manufacturer by a boy who was left deaf in one ear after getting hit by a line drive. Go here for the story. The issue in a case like this is not new. Back in October of 2009 I published a comment on a similar case.  Here is my comment from back then.

Comment on the state of medical malpractice

The PopTort has a short comment here on medical malpractice in which it points out that malpractice continues at epidemic levels while state disciplinary boards are doing very little to properly police the small number of physicians responsible for most of it and lawsuits are dropping precipitously. Here is a new fact sheet from the Center for Justice and Democracy supporting the conclusiong that to the extent there is a medical malpractice “crisis,” the crisis is not because of the number of lawsuits filed but because of the extent of medical malpractice incidents actually taking place.

This week's top stories

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

Virginia may increase damages caps in med mal cases

Virginia lawmakers may be close to approving a plan to steadily increase the state’s limits on damage awards in medical malpractice lawsuits, with a proposed bill that would increase the $2 million limit over the next two decades. Go here for the full story.

Friday, December 10, 2010

Supreme Court agrees to review one more very important torts case - duty to warn by manufaturers of generic drugs

The Supreme Court announced today it has agreed to review three consolidated cases that will clarify the legal duty of makers of generic medicines to change their labels to warn consumers of a new threat of harmful side effects, and to decide whether state court lawsuits may be filed for failure to do so. The Court consolidated three separate cases on the issue: PLIVA Inc. v. Mensing (09-993), Actavis v. Mensing (09-1039), and Actavis v. Demahy (09-1501). The cases involved two women who developed tardive dyskinesia, a serious condition affecting neurological movement, after taking a generic version of the brand-name drug Reglan. (Reglan was manufactured by Wyeth.) The generic manufacturers involved in the new cases argued in their appeals that Congress did not intend for state court lawsuits to impede the marketing of generic drugs, as cheaper versions of brand-name drugs, and that should make a difference from the situation with a brand-name manufacturer like Wyeth. The Court granted review of the issue even though the Solicitor General argued it should deny review in Mensing. On that, go here. For details, including the lower court opinions and briefs, on PLIVA Inc. v. Mensing go here. For Actavis v. Mensing, go here and for Actavis v. Demahy, go here. For more on the story go to here. Here are some links to some of my previous entries on this blog related to this issue: Preemption debate regarding generic drugs (6/11/10) Video on preemption issues in generic drug cases and question about inadequate warnings (11/2/10) Solicitor General files brief on preemption debate regarding generic drugs (11/3/10)

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 and scroll down for my own selection of top news stories.

More on clinical trials

Yesterday I posted a link to a new article in Vanity Fair about drug companies' clinical trials in other countries (here). Now Pharmalot is reporting that a cable disclosed by WikiLeaks indicates that Pfizer hired investigators to uncover corruption links to Federal Attorney General Michael Aondoakaa in hopes of pressuring him to drop long-running litigation related the testing of Pfizer's Trovan antibiotic in Nigeria during 1996. Pfizer maintains the documents are false. Go here for the full story.

Thursday, December 9, 2010

Like Pfizer, Roche warns of risks in the UK but not in the US

Yesteday I posted (here) that Pfizer has not sent doctors in the US a letter warning them of certain risks related to one of its products even though it did send letters to doctors in the UK. Today, Pharmalot is reporting (here) that Roche has done exactly the same thing. Roche said it is submitting an updated label to US regulators, but that it will not be issuing warning letters to doctors in the US unless the FDA requires it.

Johnson & Johnson loses at trial

A federal court jury in Minneapolis has decided Johnson & Johnson failed to properly warn about the risk of tendon damage linked to its Levaquin antibiotic and awarded damages of $1.8 million in compensatory and punitive damages. Go here and here for more info.

Johnson & Johnson's list of problems

For those struggling to keep track of all the Johnson & Johnson recalls and misdeeds over the past year, Pharmalot has a short post (here) on the subject with helpful links to the information available in the FDA website, including a tally of all of the millions of bottles of over-the-counter medications recalled this year as well as a dirty laundry list of manufacturing problems at its McNeil Consumer Healthcare unit. The list includes nine separate listings for extensive recalls and the ‘phantom recalls’ that were disclosed by the House Committee on Oversight and Government Reform took place last year (see here and here).

Article on clinical drug trials

Back in August, I reported that a study in Pediatrics found more and more pediatric drug trials are being conducted overseas. See here. Now, the most recent edition of Vanity Fair has published an article titled "Deadly Medicine" in which the authors investigate the globalization of the pharmaceutical industry, and the U.S. Government’s failure to rein in what it calls "a lethal profit machine." The reason for this description is summarized in the article's first paragraph: "Prescription drugs kill some 200,000 Americans every year. Will that number go up, now that most clinical trials are conducted overseas—on sick Russians, homeless Poles, and slum-dwelling Chinese—in places where regulation is virtually nonexistent, the F.D.A. doesn’t reach, and “mistakes” can end up in pauper’s graves?" You can read the full article here. For a comment on the article by the PopTort go here.

9/11 Health and Compensation Act in danger

The 9/11 Health and Compensation Act, which already passed the House, is up for a Senate vote and still seems one vote short to prevent a fillibuster. The bill would provide $7.4 billion over 10 years to provide health care and payments to sick and dying 9/11 first responders (supplementing the recent legal settlement by covering care for far more victims). It calls for closing tax loopholes on foreign corporations to raise the money - a move opposed by Republicans. Go here for more on the story.

Possible tort reform in Florida

Bad news for victims of torts in Florida. The Legislature is apparently contemplating adopting a wide variety of reforms to protect defendants (mostly businesses and doctors) from liability. As reported in the St Augustine Record (here), the measures seek to increase the burden of proof for plaintiffs in "slip-and-fall" cases, to cap the fees that the attorney general's office can pay to outside attorneys, to provide some protections, perhaps through the state's sovereign immunity, to doctors who treat Medicaid patients and to make it more difficult for witnesses to qualify as expert witnesses. As all tort reform measures, these are designed to make it more difficult for plaintiffs to get representation, to get to bring claims or to recover. Thanks to the TortsProf blog for the link.

Wednesday, December 8, 2010

Pfizer sends new warnings to doctors in the UK but not in the US

Pharmalot is reporting that last week, Pfizer sent doctors in the UK a letter warning them of the risk of osteonecrosis, or jaw bone damage, in cancer patients who are being treated with its Sutent medication However, the letter was not distributed to doctors in the US. Pharmalot asked Pfizer why and received what it calls a "non-committal reply." Read Pharmalot's story here. As Pharmalot concludes, the bottom line is that "doctors and patients in the US . . . are not being alerted to the same possible side effects as those in the UK. Perhaps the FDA may want to take a closer look, since Pfizer appears unwilling to treat all patients equally."

Tuesday, December 7, 2010

Access to Facebook

Facebook appears to be in the news almost daily these days and, for a number of different reasons, it is now clear that all lawyers need to educate themselves (and their clients) on how to use it and not to use it. That includes me, but I do know one thing: very little (if anything) is private on the internet. For more on the issues related to professional conduct and social media go to this section of my Professional Responsibility blog, particularly to this post with examples of some of the uses of social media that have created problems for lawyers and judges recently. Now here is the latest, via the Legal Profession Blog: Last year, the Philadelphia Bar Association issued an opinion (available here) concluding that seeking to surrepticiously “friend” an opposing party or witness on social media (such as Facebook), personally or through an agent would constitute unethical conduct. However, a Pennsylvania Court of Common Pleas recently held that a party may be compelled through the discovery process to provide an opponent with access to his Facebook and MySpace accounts. In a decision in the case of McMillen v. Hummingbird Speedway, Inc., handed down September 9, 2010, President Judge John Henry Foradora of the Court of Common Pleas of Jefferson County held that access to one’s social networking sites is not protected by any privilege, and that the plaintiff in a personal injury action could be compelled to reveal the usernames and passwords of his Facebook and MySpace accounts to counsel for the defendants (but not to the defendants themselves). The court looked closely at the privacy and disclosure policies of the sites in question, and concluded that users are on notice that information posted on them may be revealed to persons who have access to such information by process of law. A New York trial court decision reached the same result by a very similar analysis.

Saturday, December 4, 2010

Is Congress going to abolish the learned intermediary doctrine?

In a recent interview, I argued that the time has come to take a careful look at the concept of the so-called "learned intermediary doctrine" in prescription drug cases. I am clearly not alone on this. At least two states have abolished the doctrine and Professor David Owen, author of leading textbooks and hornbooks on Products Liability has argued that "[i]n this day of mass merchandising of prescription drugs in the media, where drug manufacturers have chosen to jump over doctors and market their drugs directly to patients, it seems that manufacturers logically should have a corresponding duty to supply warnings of dangers directly to patients, too." (See here). Not surprisingly, those who favor defendants in these types of cases, disagree. That's why the Drug and Device Blog calls a bill to abolish the learned intermediary doctrine "something completly stupid." For their arguments in favor of the doctrine you can go here and here. Apparently, Rep. Bob Filner (D-CA) has introduced a bill (H.R. 6421) that seeks to abolish the learned intermediary rule. In summary, the bill says that "[i]t shall not be a defense to any tort claim in any court in the United States that a manufacture of a product has fulfilled that manufacturer's duty of care when the manufacturer provides all of the necessary information to a learned intermediary who then interacts with the consumer of the product." Unfortunately, the bill is probably not going anywhere. I would be incredibly surprised if it did - not only because of Congress is in a "lame duck session" but because of the powerful lobbying by the pharmeceutical industry.

Illinois Supreme Court to decide on manufacturer's post sale duty to warn

About three weeks ago, the Illinois Supreme Court heard oral arguments in a very interesting case that asks the court to decide whether to impose a post sale duty to warn as recognized in the Restaement of Torts (Third). The case is called Jablonski v. Ford Motor Company. The plaintiff in the case sued Ford after the 1993 Lincoln Town Car she and her husband were driving in was rear-ended. The collision forced a pipe wrench in their trunk through the walls of the fuel tank, causing a fire that killed her husband and left her severely burned. The 1993 Lincoln Town Car was one of four Ford vehicles, including one specifically designed for police, that was built with a fuel tank behind the rear axle. (I could be wrong about this, but I think that was the same design that caused problems for the infamous Pinto model.) In 2002, Ford contacted the owners of one of its models (one manufactured mostly, if not exclusively, for police departments) to notify them of the risk of fire, but Ford did not notify the owners of the other models. Those notifications informed owners of the availability of an upgrade kit, which consisted of shields designed to protect the fuel tank, as well as a drop-in trunk liner and a series of recommendations on how to pack things in the car's truck to avoid item puncturing the gas tank -- precisely what happened in the plaintiff's case. In her complaint against Ford, the plaintiff argued that the car manufacturer should be liable for failing to warn her when it knew of the risk and had warned owners of a different model car. The oral argument is worth watching. You can listen to the audio by going here or watch the video by going here.

Dermatologist Group Says Accutane Health Risks Outweighed by Benefits

An organization representing U.S. dermatologists say that they believe that the potential risk of bowel problems and suicide from side effects of Accutane are outweighed by the benefits provided by the drug in fighting severe acne. Go here for the full story. The drug's manufacturer discontinued the drug in the United States in June 2009, citing the increased costs associated with litigation over alleged health risks associated with the medication (more than 1,600 people are currently pursuing an Accutane lawsuit), but a number of generic Accutane versions remain available under names such as Claravis, Sotret, Amnesteem and generic isotretinoin.

Class action vs Toyota still alive

A federal judge has rejected a motion to dismiss Toyota class action lawsuits filed by people who claim that they suffered economic loss as a result of recalls issued due to the risk of sudden acceleration. Go here for the full story. UPDATE: Dec 10, 2010: has the story here.

Friday, December 3, 2010

Week's top stories

I am sorry I have not been updating the blog as consistently as usual during this week. I have been working on finishing my last few classes of the year and preparing for exams and other things. Hopefully, I will have a few days before I have to start grading to catch up. Meanwhile, here is a link to the TortsProf list of most interesting stories of the week. For my own list go here and scroll down.