Friday, April 29, 2011
Thursday, April 28, 2011
Tuesday, April 26, 2011
Friday, April 22, 2011
Thursday, April 21, 2011
Tuesday, April 19, 2011
Monday, April 18, 2011
Saturday, April 16, 2011
Friday, April 15, 2011
NC moves closer to approving bill that grants immunity to pharmaceutical companies if their products were approved by the FDA
Monday, April 11, 2011
Sunday, April 10, 2011
Saturday, April 9, 2011
Thursday, April 7, 2011
Tuesday, April 5, 2011
Monday, April 4, 2011
This is an unusual position that should be abandoned. Taken to the extreme in a "worst case scenario", it means a defendant may be better off killing his victim than allowing him to survive with serious injuries.
Unfortunately, the Supreme Court of the state just issued a new decision affirming the doctrine. In a case called Vincent v Alden-Park Strathmoor, Inc. (available here), the Court was asked to decide whether a claim for punitive damages based on allegations of willful and wanton violation of the Nursing Home Care Act survives the death of the nursing home resident on whose behalf the cause of action was brought. The Court held that although common law punitive damages are available for willful and wanton violations of the Nursing Home Care Act, and although causes of action based on the Nursing Home Care Act survive the death of the nursing home resident alleged to have been injured as a result of violation of the Act, it does not necessarily follow that common law punitive damages may be recovered in a Nursing Home Care Act case where the nursing home resident is deceased "because of another basic principle of Illinois law: as a general rule, the right to seek punitive damages for personal injuries does not survive the death of the injured party."
I don't understand why Illinois does not recognize punitive damages in death cases while allowing them in other cases. I know there are states that have eliminated or capped punitive damages as part of tort reform efforts, but I don't know of any other jurisdiction that recognizes punitives in some cases but not in death cases. I do confess, however, I have not researched the question. If you know of another state that uses the same approach please post a comment here or send me a message.
Saturday, April 2, 2011
As I mentioned a few days ago, the Supreme Court heard oral arguments on PLIVA v. Mensing, Actavis v. Mensing, and Actavis v. Demahy on the right to sue in state court when a generic drug maker fails to change its label to warn consumers of new harmful side-effects. For some background information on this case, go to my previous post on it here. For all the relevant documents, lower court opinions and briefs go here.
The defendants claim federal law preempts state lawsuits because their effect could be to force the defendants to offer labeling that is different from what appears on the label of the brand-name drug. For more on the case go to Pharmalot and for a preview of the oral argument go here.
Steven Schwinn has a good summary here at the SCOTUS blog.
Obviously, the oral argument has generated a lot of attention. Here are some of the links:
The FDA Law Blog has a short comment. Bloomberg’s Greg Stohr notes that “[t]he case may turn on which of of two precedents the court concludes should apply — the 2009 ruling in a case involving Wyeth or a 2001 decision that barred suits claiming FDA product approval was obtained by fraud.” The New York Times, CNN, and the Associated Press have additional coverage of the argument.
The Drug and Device blog has a long comment on the case, which they start by admitting that they are "conflicted" on the issue.
Kali Borkoski of the SCOTUS blog reports that At the Constitutional Accountability Center’s Text and History blog, Elizabeth Wydra suggests that – just as it did in its 2009 decision in Wyeth v. Levine, which dealt with a similar question for brand-name drugs – the Court seems likely to divide five-four. The Times-Picayune and the ABA Journal also have coverage of the case, with both reporting that the Court seemed “evenly divided”; both also focus on a question by Justice Sonia Sotomayor, who asked PLIVA’s counsel whether he thought that ”Congress really intended to create a market in which consumers can only sue brand-name products? Because if that’s the case, why would anyone ever take a generic?” Finally, the Minneapolis Star Tribune (thanks to How Appealing for the link) has a story on the case that focuses on Gladys Mensing, the respondent in the case.
US Supreme Court decides Connick v Thompson on the possible liability of a DA's office for failing to train its staff
Lawmakers in North Carolina have proposed a bill that, subject to a few exceptions, would shield drug manufacturers from lawsuits by consumers if the product has been approved by a government agency. The exceptions contained in the proposed legislation refer to those who (1) continue to sell a product after a government agency has ordered its withdrawal, (2) alter the product in a way that would have avoided an alleged injury, (3) intentionally withheld or misrepresented info that led to approval by a government agency, or (4) bribed a government official in order to obtain product approval.
You can see a draft of the bill here. It is part of a larger tort reform package that seeks to cap noneconomic damages, such as pain and suffering, at $250,000 from each defendant in a tort lawsuit and to make part of any punitive damage award be assigned to the government.