Thursday, March 22, 2012

NYT article on causes of action vs manufacturers of generic drugs

The New York Times has published an article called Generic Drugs Proving Resistant to Damage Suits (available here) discussing the effects of the Supreme Court's decision in Pliva v. Mensing.  For the background on that case, go here.

HR 5 bill limiting patients' rights approved by the House -- UPDATED

Day on Torts is reporting that the House of Representatives has passed HR 5 by a vote of 223-181.   Ten Republicans voted against the legislation, and 7 Democrats crossed over to support the Republicans.  Four Republicans voted "present."  As I have discussed many times before (see here)  the bill attempts to limit the right of victims of medical malpractice to recover for their injuries by making it difficult for them to find representation and by limiting their possible recovery. It also provides protection to pharmaceutical and medical devices companies in cases of injuries caused by defective products.

UPDATE April 13:  AboutLawsuits has a comment here.

UPDATE April 20:  The Blog of the Legal Times has more on the story (and some interesting comments) here.

Comments on the recent decisions on the constitutionality of the cigarette warnings regulations -- UPDATED

Three days ago I reported on two recent decisions on the constitutionality of the regulations that require cigarette manufacturers to place graphic images as part of the required warnings in cigarette packages.  Professor Jonathan Turley has a detailed comment on the topic here.

UPDATE (March 22): The FDA Law Blog has posted its analysis of the decision of the Court of Appeals for the 6h Circuit here.

Wednesday, March 21, 2012

Debate on federal medical malpractice/immunity to pharmaceutical companies and more bill

The Pop Tort is reporting today that Congress is beginning its debate on HR 5, a bill that, among other things, attempts to limit the right of victims of medical malpractice to recover for their injuries by making it difficult for them to find representation and by limiting their possible recovery. Given the level of medical malpractice errors reported, it is scary to think what would happen if the bill were adopted.

My first impressions of the bill, which has been around for over a year now, can be found here.  Since then, I have posted comments and updates on the bill hereherehereherehereherehere, here, here and here.

Today's Pop Torts comment is available here.  In it they point out how peculiar it is that although the proponents of the bill are generally "anti-federal government", they apparently trust the federal government to get it right every time when it comes to the safety of drugs and medical devices.  They also remind us that the FDA continues to fall down on the job.

Minnesota lowers caps to pre-2008 level

The TortsProf blog is reporting today that new legislation in Minnesota restores caps in wrongful death cases against state or local governments to pre-2008 levels.   StarTribune Politics has more.

Comments on the recent decisions on the constitutionality of the cigarette warnings regulations

Two days ago I reported on two recent decisions on the constitutionality of the regulations that require cigarette manufacturers to place graphic images as part of the required warnings in cigarette packages (here).  Professor Jonathan Turley has a detailed comment on the topic here.

The FDA Law Blog has posted its analysis of the decision of the Court of Appeals for the 6h Circuit here.

Monday, March 19, 2012

Court's continue to reject challenges to the current state of the law regarding generic drug labeling in failure to warn cases

Last year, the US Supreme Court held that a cause of action against a manufacturer of generic drugs is preempted if the claim is based on the manufacturer's failure to update or strengthen its warnings unless the manufacturer of the same brand name drug was obligated to do it.  Go here for details on this decision and go here and scroll down for much more on the background before the case was decided and links to much more information since the case was decided. (I thnk the first post on this subject is on Nov 2, 2010).

Since then, a series of legal challenges have been filed, but all have been rejected.  Today Pharmalot is reporting on the most recent example.  The FDA Law Blog has also posted a good summary of the state of the law.

Court of Appeals for 6th Circuit upholds regulation requiring new graphic warnings for cigarettes -- UPDATED

We have been following the developing saga of the FDA's attempt to impose new warning labels on cigarette packages that include graphic images.  See (in chronological order) here, here, here, here, here and here.  The last report was that a federal district court in Washingon DC declared the regulations unconstitutional. 

Today, however, the Wall Street Journal law blog is reporting that a federal appeals court in Cincinnati has upheld the portion of the regulations that requires that large graphic warnings comprise the top 50% of the front and back of cigarette packs.  Go here for a copy of the opinion.  According to the report, the Court held that the labels “serve as disclaimers to the public regarding the incontestable health consequences of using tobacco” and do not unconstitutionally restrict tobacco companies’ speech. 

UPDATE (March 21): Professor Jonathan Turley has a detailed comment on the topic here.

First Amendment and the pharmaceutical industry

Max Kennerly has published a very interesting comment on the increasing use of the First Amendment as the basis for arguments by the pharmaceutical industry in an attempt to limit the reach of possble regulation by the FDA.  Given that marketing of drugs is a form of commercial speech, the pharmaceutical companies' approach is not entirely surprising.  But the social and health costs of an unregulated pharmaceutical industry can be very dangerous.  His conclusion: "In time we hope the pendulum will swing the other way, and the First Amendment will return to its roots of protecting free speech on the topics that really matter, rather than serving as a mere tool by which politically connected interests can keep their market position. But how many people will have to suffer without any legal recourse before that time?"  Go here to read the full comment.

Recall: Study on suicide and anti-depressants recalled by authors

Pharmalot is reporting today that a famous study on the relationship between the use of anti-depressants and suicide has been recalled by the authors.  Go here for the details.

Eight years ago, the FDA decided to require Black Box warnings on labeling for anti-depressants for teenagers and children.  Critics of that decision, have apparently used as support a 2010 paper which reviewed data on the toxicological detection of antidepressants in nearly 19,000 suicides in Sweden between 1992 and 2003 that were linked to registers of psychiatric hospitalization. As Pharmalot reports today, however, now the paper has been retracted by the authors  due to “unintentional errors in the analysis of the data presented.”

Comment on the study re poor people and medical malpractice claims

About two weeks ago I posted a link to a new study that concludes that "existing studies show poor patients, . . . tend to sue physicians less often."  Day on Torts has posted a short comment on this conclusion here.

Friday, March 16, 2012

A list of all the posts on My Cousin Vinny

A few days ago I posted a comment on the movie My Cousin Vinny as part of a multi-blog discussion organized by Abnormal Use.  The discussion produced some really interesting material and you can now take a look at all the comments here and here

Debate on Kiobel and the issue of whether corporations can be liable under the Alien Tort Statute

The online journal of the University of Pennsylvania has published a debate on the issue of whether corporations can be liable under the Alien Tort Statute.

Thursday, March 15, 2012

Jury finds for plaintiffs in case vs Virginia Tech based on 2007 campus shooting but amount will be reduced because of mandatory caps

The jury in a wrongful death case brought by the families of two students against Virginia Tech University recently found that the defendant was negligent and awarded the plaintiffs $4 million each.  However, because of the state’s damages cap, the awards are likely to be reduced to a mere $100,000 each for their dead children. Professor Jonathan Turley has published a comment (with links to more information) in which he argues that "For [the] parents . . .  the cap must be a terrible insult as the calculation of what the state believes their child is worth in the face of lethal negligence by the school."  Go here to read the full comment.

Monday, March 12, 2012

My Cousin Vinny: a story about legal education

The Abnormal Use blog is celebrating the twentieth anniversary of the release of the movie My Cousin Vinny by publishing a series of comments and interviews and also by sponsoring a multi-blog discussion on the movie.  Go here to get more information.

When my students ask me to recommend movies, I give them a list I have prepared over the years in which I have organized the titles under certain main “themes.”  No one is surprised to see My Cousin Vinny on the list, but some are surprised I have listed it under the theme of “legal education.”  So, I thought I’d use my contribution to the Abnormal Use blog’s celebration to explain why. 

One reason I place My Cousin Vinny under the theme of legal education is that it provides so much material you can use in the classroom.  For example, you can use the movie to discuss criminal procedure, courtroom decorum, professional responsibility, unethical behavior, the role of the judge in a trial, efficient cross-examination, the role of expert witnesses and effective trial advocacy.  Go here, here and here for more on this.

But the reference to legal education goes deeper.  I think you can use the movie to discuss the most common topic of debate within legal education itself.  Interestingly, however, in My Cousin Vinny, the issue is turned on its head.

After Vinny’s girlfriend Mona Lisa bails him out for a second time after having been found in contempt, she criticizes his performance in court and tells him it is pretty clear he does not know what he is doing.  She then utters one of my favorite lines in the movie: “Don’t they teach you that in law school?”  Vinny’s response is just as classic: “NO!  They teach you Contracts...!  Obviously, the implication is that in law school they teach "law" not "how to practice law".

There are many ironic twists to this short exchange.  First, as to those “things” that his girlfriend was referring to, we do teach you that in law school!  Vinny may not have learned them - or may have forgotten them - but we do teach them!  But, Vinny is right that there are many things you need to know to practice law effectively that we don’t teach in law school.

The reason I say the movie turns the issue on its head is that Vinny is terrible at the things we do teach in law school, but very good at the things we don’t.

Although Vinny is certainly no role model when it comes to knowledge of the law, legal analysis and ethical behavior, law students could learn from him as to how to use legal thinking in the complexity of actual law practice.  Vinny needed to learn legal analysis, that which law schools are best equipped to teach, while many of today’s graduates need Vinny’s inherent ability to interview clients, to gather facts, to prepare a theory of a case, to negotiate, to know when to ask a question and when to remain quiet, to cross examine a witness forcefully (but with charm) in order to expose the weaknesses in their testimony and so on.

To be successful, like Vinny, all law graduates need to develop both their analytical knowledge and their practical skills.  And, also like Vinny, they need to learn to accept the fact they need help. Like Vinny, they can not do it all alone.  Were it not for his girlfriend, Vinny’s attempt to practice law would have ended in a disaster and, possibly, in disbarment.   We can all learn from that lesson too.

Thus, in the end, what My Cousin Vinny teaches us about legal education is that law schools can and should complement the focus on legal analysis with an introduction to practice skills, but also that to expect law schools to make all students ready to practice law by themselves right after graduation after only three years of studies is a bit naive.  As stressed in the final report of an ABA Task Force on legal education back in 1992, both the academic institutions and the practicing bar need to understand that they have complementary duties toward the development of skills in new graduates.

Thursday, March 8, 2012

A new study concludes the poor are less likely to sue for medical malpractice

Here is a link to a new study that concludes that the poor are less likely to sue for medical malpractice. (Thanks to the TortsProf blog for the link.)

More comments on Supreme Court's decision to expand arguments in Kiobel

The SCotUS blog is providing more links to comments on the Supreme Court's decision to order reargument in Kiobel v. Royal Dutch Petroleum to address whether the Alien Tort Statute allows foreigners to sue in U.S. courts for acts committed abroad. Courthouse News Service reports that some legal observers are puzzled at the “highly unusual move,” while at’s Corporate Counsel blog, Sue Reisinger discusses two amicus briefs that “clearly helped sway the Justices into postponing a decision while exploring a new issue not raised by the parties.”

Wednesday, March 7, 2012

Comments on Supreme Court's decision to expand arguments in Kiobel

On Monday I reported that the Supreme Court decided to expand the discussion of Kiobel v Royal Dutch Petroleum beyond the issue originally presented by the case (whether corporations can be sued under the Alien Tort Statute) to include the issue of extraterritoriality (whether the ATS can be applied to conduct that occurs outside the US).  The decision generated some commentary in the past couple of days.  Here is a summary taken from the SCotUS blog:

Greg Stohr of Bloomberg has coverage, as do Nina Totenberg at NPR’s The Two-Way blog, Mike Sacks of the Huffington Post, Robert Barnes of the Washington Post, Adam Liptak of the New York Times, Mark Sherman of the Associated Press, James Vicini of Reuters, Marcia Coyle of the National Law Journal (via the Blog of Legal Times), Nicole Flatow of ACSblog, Jess Bravin of the Wall Street Journal (subscription required), and Jaclyn Belczyk of JURIST. And in a post published at the Huffington Post before the reargument order was issued, Katie Redford responded to post-argument news reports suggesting that the Court was likely to rule in favor of corporations.  Rick Hasen at the Election Law Blog sees the “fingerprints of Justice Alito all over the” reargument order, while at the Volokh Conspiracy Kenneth Anderson lists some of the questions that he wishes were before the Justices.  And in her column at Thomson Thompson Reuters News and Insight, Alison Frankel notes that the “recasting of Kiobel has the potential to devastate U.S. human rights litigation based on overseas conduct.”

Tuesday, March 6, 2012

Oral argument on whether corporations can be sued under the Alien Torts Statute

As you probably know by now, I have been following the developments in the two cases before the US Supreme Court on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute (Kiobel v Royal Dutch Petroleum) and the Torture Victim Protection Act (Mohamad v Rajoub).  For more details, go here and scroll down to see multiple posts on the subject.

In  Kiobel v Royal Dutch Petroleum the Court of Appeals for the Second Circuit held for the first time that corporations can't be sued under the Alien Tort Statute.  Likewise, in Mohamad v. Rajoub, the DC Circuit Court held that corporations could not be liable under the TVPA (even though in a different case it held they can be sued under the ATS).

Although some courts have agreed with Rajoub, other Circuit Courts have rejected Kiobel's reasoning and it remains the only case to have decided the issue in favor of the corporate defendants (under the ATS).  Here is a list of the relevant cases and how they were decided.

Both cases were heard last week and here are the links to the oral arguments: for Kiobel go here and for Rajoub, go here.

Monday, March 5, 2012

Supreme Court puts off decision in Kiobel and orders re-argument

I did not see this coming!  The Supreme Court just announced that it will put over Kiobel to its next term and ordered lawyers to come back with an expanded argument on Congress’s power to pass laws that reach overseas.  Go here and here for more details.  The order states, in part, as follows:
This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” The supplemental brief of petitioners is due on or before Thursday, May 3, 2012. The supplemental brief of respondents is due on or before Monday, June 4, 2012. The reply brief is due on or before Friday, June 29, 2012. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). . . .
What is interesting about this is that the issue of extraterritoriality of the law was not one raised by Kiobel but by another case which I have discussed in some detail here.  The case is Sarei v. Rio Tinto, PLC, a case that has been going up and down from the district court to the court of appeals (of the 9th circuit) for years. In the most recent decision in the case, the Ninth Circuit voted (en banc) 7-4 to permit an ATS suit to proceed against a mining company accused of aiding and abetting the government of Papua New Guinea in violating the human rights of residents of the island of Bougainville.

On the issue of extraterritoriality, as I have said in the past, the Supreme Court's decision could result in the end of the ATS as we know it.

The issue of extraterritoriality is not new and last year, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011), Judge Posner concluded that there is no basis for the argument that the statute has no extraterritorial application. As Judge Posner points out, "Courts have been applying the statute extraterritorially . . . since the beginning; no court to our knowledge has ever held that it doesn’t apply extraterritorially; and Sosa [the only case on the ATS decided by the Supreme Court] was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn’t be maintained. Deny extraterritorial application, and the statute would be superfluous . . ."

In the end, however, as I have stated before, I think it is likely that the Supreme Court will decide in favor of those arguing against corporate liability under the ATS.

Sunday, March 4, 2012

NYT Editorial about Kiobel and the notion of corporate liability under the Alien Tort Statute

 Today's New York Times Sunday Review includes an editorial on the issue of whether courts should recognize a cause of action against corporations under the Alien Tort Statute.  In part it states:
In a world where multinational corporations are primary actors, the need for a way to hold them accountable for extreme abuses is more urgent than ever. . . .
. . . .
There is no good justification for a categorical rule against corporate liability. As the economist Joseph Stiglitz said in an amicus brief, these lawsuits can be an efficient way to enforce human rights in countries where court systems and other means of policing violations are ineffective. Potential civil liability gives corporations an incentive to improve their conduct. If a multinational company commits an offense like torture, the fact that it is a corporation and not an individual is immaterial in the pursuit of justice.
You can read the full text here.

Friday, March 2, 2012

More coverage of Kiobel

At the Originalism Blog, Michael Ramsey offers his analysis of Tuesday’s oral argument in Kiobel v. Dutch Royal Petroleum Co., a case about corporate liability under the Alien Tort Statute.  The editorial board of the Los Angeles Times also weighs in on the case, arguing that, “as long as U.S. courts are open to such suits, there should be no distinction between individual and corporate defendants.”

Thanks to the SCotUS blog for the links

Thursday, March 1, 2012

Supreme Court decides asbestos preemption case

Because I was paying so much attention to the oral arguments before the Supreme Court, I initially missed the fact that the Court issued an opinion in a torts related case called Kurns v. Railroad Friction Products,in which the Court found that a widow’s state-law claims against the manufacturers and distributors of locomotive products containing the asbestos that caused her husband’s death were preempted by federal law.  For more information on the case go here, here and here. For all the documents related to the case go here.

Regulation imposing new cigarette warnings declared unconstitutional - UPDATED

Back in June of last year, I reported that the FDA enacted a regulation to mandate new labels for cigarette packs with various graphic images and messages such as “Smoking can kill you.” (See here) Some time later, after five of the nation's largest cigarette manufacturers filed suit against the FDA, the federal judge presiding over the case granted a preliminary injunction that prevented the FDA from enforcing the new rule. See here and hereGo here and scroll down for all the posts on this issue.

Today, it is being reported that U.S. District Judge Richard Leon has declared the regulations unconstitutional.  According to the Wall Street Journal, the judge said the Obama administration failed “to convey any factual information supported by evidence about the actual health consequences of smoking through its use of these graphic images.” The rule, he said, violates companies’ First Amendment protections against government-compelled speech.  Go here for the story in the Wall Street Journal law blog and here for the story in the Blog of the Legal Times.

The court's decision is available here.

UPDATE 3-1-12: The First Amendment Center has a comment here.

UPDATE 3-2-12:  The FDA law blog has a comment here.

One more comment on Kiobel and the fate of corporate accountability under the ATS

At the Huffington Post, Valerie Brender contends that whatever the outcome of Kiobel, the decision “will be a watershed moment for corporate accountability.”