Thursday, June 30, 2016

Good news for victims in Missouri: Governor vetoes two tort reform bills

Back in April I commented on a pending bill in Missouri to abolish the collateral source rule.  In that post, I explained what this means and why, if adopted, the new law would be "bad news" for torts victims. 

Today I am happy to report that Missouri's Governor has vetoed the bill.   Go here for more information.  Reportedly, the Governor concluded that the bill would be unfair to those who purchase insurance, which is exactly right.  Tort reformers always argue that the collateral source rule is unfair because it allows plaintiffs to recover more that what they should in compensation. But this argument is based on a simplistic approach that does not take into account the fact that plaintiffs have paid for insurance.  Thus the Governor is right that the new bill would essentially penalize those who have been paying for insurance all along and unduly benefit the wrongdoers. 

Tuesday, June 28, 2016

California Supreme Court to consider whether brand name drug manufacturer can be liable for injuries caused by inadequate warning in equivalent generic drug

A few years ago I reported on a decision by the Alabama Supreme Court holding that a brand name manufacturer could be held liable for injuries related to inadequate warnings when the plaintiff used a generic version of the drug.  The logic behind this reasoning, which has since come to be known as "innovator liability," is that federal law bans generic drug manufacturers from altering the warnings provided by the brand-name manufacturer (aka the "innovator") even if the generic manufacturers are aware that the brand name drug warnings are inadequate.  Thus, if the warning on the generic is inadequate, it is the innovator's "fault." 

Another reason for the development of this liability theory is that, as a result of the inability to independently alter the warning labels, generic drug makers are essentially immune from liability as long as they used the same warning as the innovator. As a result, those injured by generic drugs have been left with no recourse. Here is a discussion of the issue.

The Alabama decision was overridden by the state legislature last year, but the issue is back in the news because earlier this month the California Supreme Court granted review in a case on "whether brand name drug manufacturers should be held liable for failure to warn about risks associated with their medications when injuries are caused by generic equivalents."

Stay tuned.

Monday, June 27, 2016

Bill to adopt discovery rule as part of statute of limitations fails in New York

The New York Daily News is reporting that a bill to adopt the discovery rule for med mal cases in New York failed to be approved by the legislature.  The bill would have tolled the current 2 1/2 year statute of limitations until the plaintiff discovered the alleged malpractice.  New York is one of only six states that does not follow the discovery rule in this context. 

Thanks to the TortsProf blog for the update.