Judge recently issued a "tentative decision" against the plaintiffs in California case related to opioid crisis

If you have been watching "Dopesick" on Hulu or "Goliath" on Amazon Primes, you might be disappointed to hear that this week a judge in California issued a "tentative decision" holding that a lawsuit seeking to hold drug companies liable for the opioid crisis must fail because the plaintiffs didn’t show that false and misleading marketing caused an increase in medically inappropriate prescriptions.  The defendants included Johnson & Johnson, Teva Pharmaceutical Industries, Endo International and AbbVie Inc.’s Allergan unit.

More than 3,300 lawsuits have been filed by state and local governments over the opioid crisis. In the only other case that went to trial, an Oklahoma judge found Johnson & Johnson liable for $465 million. 

The ABA Journal has the full story here.  Reuters has more here, and NPR's coverage is here.

Another attempt to eliminate (at least part of) the Feres Doctrine

As you might remember from your first semester Tort Law class, the Feres Doctine refers to the interpretation given by the Supreme Court in a case called Feres v US to an exception to the Federal Torts Claims Act.  According to the exception, members of the military can not sue the federal government for injuries suffered while in active duty.  In Feres, the Court expanded the interpretation of the exception to essentially ban any claim for any injury under any circumstances while the plaintiff was in service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example.

This is a controversial doctrine, and there have been many calls to eliminate it.  But all the attempts to do so have failed.

The TortsProf blog is now reporting that there is a new push afoot.

A bipartisan bill that would overrule the Feres Doctrine has been introduced in the House of Representatives.  The bill would create an exemption to the Federal Tort Claims Act to allow plaintiffs to file medical malpractice lawsuits for injuries that occur after the bill's passage.  However, the bill would have no impact on those instances of medical malpractice that occur during combat operations, aboard ships, or at battalion aid stations. 

For more information on the debate related to the Feres Doctrine, you can watch this old video.  And for some of my posts on it go here, here, here, and here.

Interestingly, the Feres Doctrine is also an underlying issue in the new TV Show "The Code", in which the widow of a member of the Marines sued for wrongful death.  During the episode (episode 3, which you can watch here), a few of the characters talked about it and their explanation was actually pretty accurate.  I think the producers got a good legal consultant to help with the script.

Military contractors, the Feres Doctrine and The Good Wife

Last Saturday I posted a note about a recently decided case against a military contractor for injuries to soldiers from exposure to dangerous materials.  See here.  I also posted a separate note on the continued reports on sexual assaults on female cadets at the Air Force Academy and the effect of the Feres doctrine on the possible liability of the state for those injuries.  See here.

Today, the PopTort blog has posted a note that relates to both issues based on last night's episode of the TV show "The Good Wife."

Before going any further, though. let me say two things: I did not see the episode and, the reason I did not see the episode is basically because I think that show sucks.  I have seen a couple of shows in the past and all I can say is that they really need some legal consultants.  For a show about lawyers, at least in the episodes I saw, they got the law and the practice of law wrong every time; although that is not unusual when it comes to law related shows...

But I digress...

According to the PopTort, last night's episode was about a male defense contractor accused of sexually assaulting a female officer, who then sued him for civil damages.   The storyline had the contractor trying to assert absolute immunity under the Feres doctrine.  So, I might try to give this episode a try at some point this week...

On the legal question itself, as quoted by the PopTort, in a report by the Congressional Research Service:

The Feres doctrine currently does not bar suits against government contractors working for the military, although some contractors have argued that it should be extended to preclude such suits, and some commentators have asserted that the Feres doctrine leads service members to seek damages from contractors that they could not recover from the government. Contractors have also attempted to assert derivative Feres or “intramilitary” immunity, although with little success. Where a party is immune from suit, the court cannot exercise jurisdiction over the claim against it.

 Go here for the PopTort's full comment.