Professor Sebok's comments on "light cigarette" case

Professor Anthony Sebok, Cardozo School of Law, has published a column on the Supreme Court decision in Altria Group v. Good, the "light cigarettes" preemption case. In it, he argues that the case is very important "because the Court, by finding that there was no preemption, has given the green light to an important new litigation threat to the tobacco industry" and "because the two deeply-divided opinions produced by the Court give us hints as to how it will decide the next preemption case, Wyeth v. Levine," which may be one of the most significant cases decided by the Court this year. For previous posts on Altria go here, here and here. For short videos and articles on Wyeth v. Levine, go here.

Top Illinois cases of the year

The Chicago Daily Bulletin has published its "most talked-about" Illinois Supreme Court torts decisions of the year list; and here it is: ... and the winner of the most talked about case title is....: Ready v. United/Goedecke Services Inc., finding that defendants in negligence suits who settle prior to trial should not be named on jury verdict forms for the purposes of apportioning liability. The other honorable mentions are: Hudson v. City of Chicago, in which the court held that the refiling of a wrongful-death suit was barred by res judicata because the plaintiffs took a voluntary dismissal after part of their suit was dismissed on the merits. Wills v. Foster, in which the court held that a personal-injury plaintiff was entitled to recover the reasonable value of the medical care she received rather than being limited to the amount paid by Medicaid in settlement of her medical bills. Mikolajczyk v. Ford Motor Co., in which the court held that Ford Motor Co. was entitled to a new trial in a design-defect lawsuit brought by the widow of a man killed when his sedan was rear-ended by a drunken driver. The court discussed the relationship between the risk-utility and consumer-expectations tests, both of which can be used to prove that a product is unreasonably dangerous. Barth v. State Farm Fire & Casualty Co., in which the court held that an insurer was not required to prove all of the elements of common-law fraud in order to claim a coverage exclusion for intentional misrepresentation.

CPSC files suit for late reporting

The Consumer Protection and Safety Commission has been pretty much an irrelevant agency for years. It rarely tries to fine companies for late reporting safety issues to them and in over 35 years of existence, the CPSC has done sued manufacturers only a handful of times. The Product Liability Professors' Blog reports today that on December 23, 2008, the CPSC filed suit in the USDC of Minnesota against Wagner Spray Tech. The complaint is available here. As posted below, although it is not clear that the CPSC will become more aggressive in its approach to enforcement of safety regulations, there are high expectations regarding the future of this agency under the new administration.

Payment of settlement for damages caused by tainted pet food may be delayed

U.S. pet owners who asked for money from a $24 million settlement for owners of dogs and cats who were sickened or died after eating pet food contaminated with an industrial chemical were set to start receiving checks sometime in 2009, but their payments could be held up even longer while a judge sorts out last-minute appeals to the settlement filed by four people. While the settlement does not compensate owners for pain and suffering associated with the death or illness of their pets, it was structured to pay up to 100 percent for a variety of other costs -- from vet bills to replacing carpet ruined by sick pets. Law.com has the full story here.

Drugmaker Pays $2.6 Million Over Off-Label Marketing

Law.com reports today that Nebraska Attorney General Jon Bruning has announced drugmaker Cephalon has paid more than $2.6 million to the state to settle allegations of off-label marketing of three pharmaceutical products. The settlement resolves allegations that Cephalon marketed drugs for uses not approved by the Federal Drug Administration. The drugs are Actiq, a highly addictive painkiller; the anti-seizure drug Gabitril; and the sleep-disorder drug Provigil. The money is part of a $425 million national settlement with state Medicaid programs. The Department of Health and Human Services, which runs Nebraska's Medicaid program, will receive $334,906. Some $669,812 will go into the state's school fund; $27,772 in interest will be prorated between the Medicaid program and the school fund; and $1.6 million goes back to the federal government. The state's Medicaid program is both state and federally funded. Cephalon recently also payed $431 Million to settle whistleblower suits.

Top Ten decisions of 2008?

A few days ago, I posted a link to Drug & Device Blog's top ten list of the worst (according to them) decisions of the year. Today they have posted their top ten best here. As you read these lists, remember what I stated in my previous post, though. D&D Blog is a pro-defendant site. I don't think any opinion that favors plaintiffs/consumers' rights made the "good" decision list. Consumer activists would probably consider the "worst" list to be the "best" and vice versa.... Regardless of their political point of view, the lists are important and instructive.

More on Obama's election and tort law

There is an interesting article in the Los Angeles Times hoping that the Obama administration will usher in a new era of consumer protection by improving the Consumer Product Safety Commission and the Food and Drug Administration. The article is available here.

Government liability for death of someone under the influence?

In a case with facts very similar to those of Deucer v. Vecera, a case familiar to anyone using the Prosser on Torts casebook, the Illinois Appellate Court has decided that the city of Herrin, Ill. does not have immunity in a case brought by the parents of a teenager who died after the police released her even though she was clearly intoxicated. Interestingly, the Illinois Court reaches the opposite conclusion than that of the Court in Deucer. According to a report in today's Chicago Daily Law Bulletin, a police officer arrested an 18 year old around 3:30 a.m. for underage drinking. At the time, she was said to be ''incoherent'' and had a blood-alcohol level of 0.18 percent. The police detained the teenager, but later released her before someone arrived to pick her up. About 20 minutes later, the teenager was killed in a traffic accident while walking on a nearby street. The question for the court was whether the city has absolute immunity under section 4-102 of the Governmental and Governmental Employees Tort Immunity Act or whether the complaint fits within the exception for willful and wanton misconduct provided by section 2-202. Section 4-102 of the Tort Immunity Act provides, in pertinent part that "neither a local public entity nor a public employee is liable … if police protection service is provided, for failure to provide adequate police protection or service." This provision provides immunity for discretionary conduct and essentially protects the right of the government to decide how to best allocate its resources. Likewise, section 4-107 of the Tort Immunity Act provides that "neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest or by releasing a person in custody." Section 2-202, on the other hand, provides that "a public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct." Thus, the key is whether the police officers acted in the process of executing or enforcing any law and the Court held that they did. Thus it concluded that section 2-202 applies and that the complaint created triable issues of fact concerning liability for willful and wanton acts of the police.

Important safety warnings!

It is Christmas eve and I am up late putting together some toys for our kids. I just came across a little sheet of paper that came with one of them. It says "Important safey instructions" at the top, so being the reasonable prudent person that I am, I read them. It is a list of 10 instructions. I found the first 4 very interesting. I am not making this up: Important Safety Instructions: 1. Read these instructions. 2. Follow these instructions. 3. Keep these instructions. 4. Heed all warnings. 5. .... and on it goes from there...

Soldiers suing for exposure to toxins in Iraq

Sixteen Indiana National Guard soldiers sent to Iraq have filed suit against the Houston-based military contractor Kellogg Brown and Root (KBR), for allegedly exposing them to a cancer-causing toxin called hexavelent chromium, the same toxic substance that poisoned homeowners in Hinkley, California, and was made famous by legal activist, Erin Brockovich. Click below for a video of a report on CBS News last night (after a brief commercial) in which they say depositions of KBR employees show that the company knew about the presence of the toxin as early as May 2003.
Watch CBS Videos Online Thanks to PopTort blog for the story, available here.