Supreme Court rejects appeal by Pfizer in Alien Tort Statute case

Back in January 2009 I reported that the Court of Appeals for the Second Circuit revived a claim filed under the Alien Torts Statute by Nigerian citizens against Pfizer claiming the company subjected their children to medical experimentation without their consent during a 1996 meningitis outbreak. The opinion is available here. Then in November 2009 I noted that case was appealed to the the US Supreme Court and that the Court asked the Justice Department’s Office of the Solicitor General to file a brief in the case. Today, Pharmalot is reporting that the Supreme Court has rejected an appeal by Pfizer after the US Solicitor General filed a brief arguing the Supreme Court should not bother to hear the case. Go here for the full story.

FDA likely to recall Avandia

It appears increasingly likely that an FDA advisory panel will recommend that an Avandia recall be issued next month, as two new studies provide further evidence that GlaxoSmithKline’s diabetes drug increases the risk of heart attack and life-threatening injuries. More on this story here.

Malpractice claim in case that settled

The Chicago Personal Injury Blog is reporting today on an interesting malpractice case filed by Goodyear and Goodyear Dunlop Tires North America Ltd. against two of its former attorneys. The plaintiffs claim that the attorneys' negligence cost them what they believed would be an easy victory in a product liability case. The original case involved a claim by two plaintiffs who suffered injuries when their motorcycle's tire deflated suddenly causing them to crash. According to the story, Goodyear is claiming that the lawyers failed to demand a jury trial; made errors resulting in the judge striking expert witness testimony; and various errors in their cross-examination. Goodyear claims that they should have easily won the case had it not been for the attorney's conduct. But, here is the interesting part: Goodyear didn't lose the case. It agreed to settle that original case. It does not sound like plaintiffs are arguing negligence in inducing it to settle (which would be difficult to prove, I think, given that Goodyear is a sophisticated business client which, I assume, has its own in-house legal resources). So the question is whether the plaintiffs can support a claim for malpractice which requires them to show they would have won the case. In most jurisdictions it would not be enough to show that they would not have settled, or that they would have settled for better terms. Also, does the fact that they decided to settle become now support for a defense? Didn't their decision to settle contribute to their loss in some way?

Debate as to legislative approach to dog attacks and dog breeds continues

Just a few weeks after the city of Elgin (Illinois) adopted a new law regulating "dangerous dogs," the mayor of the city was attacked by a pair of pitbulls while he was out walking his own dog. Injuries caused by dogs is, of course, an important element in the discussion of common law strict liability and whether dogs (or dog ownership) should be regulated is a hotly debated topic. Here is a link to an editorial (and reader comments) published by the Daily Herald (a newspaper of the northwest suburbs of Chicago) discussing the recently approved law in Elgin.

Glaxo settles claims over birth defects allegedly caused by anti-depressant drug Paxil

Last month, GlaxoSmithKline agreed to pay about $60 million to settle 700 lawsuits alleging its Avandia diabetes pill causes heart attacks and strokes (see here, here and here). Now, Glaxo is settling nearly 200 lawsuits that charged its Paxil antidepressant caused birth defects. GSK has settled every case scheduled for trial in the eight months since a Philadelphia jury awarded $2.5 million to the plaintiffs in the first Paxil test case to go to trial. Go here and here for the full story. UPDATE 6/24: AboutLawsuits has more on the story here.

Ninth Circuit may order new trial vs Chevron for aiding and abetting

Back when I first started this blog in late 2008, there were a number of cases in the news related to the Alien Tort Statute (see here). One that gathered a lot of attention was a case by Nigerian citizens who alleged that oil giant Chevron Corp. cooperated with the Nigerian government in human rights abuses of protesters at the company's off-shore Nigerian facilities. That case ended up with a jury verdict in favor of Chevron. For that story (with links to more information) go here, here and here. Now, almost two years later, Law.com is reporting that a Ninth Circuit Court of Appeals panel seemed to be open to the idea of ordering a new trial for the Nigerian villagers. Go here for the full story.

Pharma admits it made false statements on label

Teva Pharmaceuticals has admitted that it made false statements on the label of Gianvi, a generic clone of Bayer’s Yaz birth control pill. For more on this story go to AboutLawsuits.com.

NJ court holds plaintiff is required to file a "certificate of merit" in order to file a legal malpractice action.... Bad idea

Last week the New Jersey Appellate Division held that a plaintiff in a legal malpractice action is obligated to serve a timely affidavit of merit on attorneys as part of the process in a legal malpractice claim. New Jersey has a statute that requires filing such a certificate in cases against a number of professions but it defines "attorney" as a person licensed to practice law in the state of New Jersey. In this case, at least some of the defendants had provided legal services from offices outside the state and were not admitted in New Jersey. The case is called Lacrosse v. Klehr, Harrison, Harvey, Ranzburg, Ellers, LLP, and is is available here. The court only imposed the requirement prospectively, however, because prior state case law was unsettled and federal decisions on the subject attempting to apply New Jersey law had taken arguably different approaches. My problem with this is not the holding in this case in particular but with the notion that a plaintiff should be required to file a certicate to begin with. The court here was simply deciding whether the terms of a particular statute applied to the facts of the case. I just don't like the statute. I think the requirement of a certifcate of merit is a bad idea for the same reason I think requiring certificates of merit in medical malpractice cases is a bad idea. In fact, I have stated before that if forced to choose between caps for damages and certificates of merit requirements I would have to support caps. Both caps and certificates of merit requirements are popular "tort reform" measures, which, as all such measures, are looking to do one of two things: either to make it more difficult for victims to get compensation (by making it more difficult for them to get to court) or, if they can get compensation, to reduce the amount of money they can recover. Caps on damages are examples of the latter approach to reform; requiring a certificate of merit is an example of the former. It is, admittedly, a close call as to which would be worse for victims, but I am leaning towards saying that the certficate requirements are worse. With the cap, at least the victim does get some compensation and, as long as the cap is generous, many plaintiffs may not be affected. Of course, those who would be affected would be precisely those who need the compensation the most - those who suffer catastrophic injuries - but I as I said, I am being forced to choose between bad choices and with this one at least the victims get a chance to get something. In contrast, the approaches to reform that seek to make it more difficult for victims to find representation, to find expert witnesses willing to certify their claims, and to make it more difficult to file claims to begin with, if successful, leave the victims with no recourse and no recovery at all. Thanks to the Legal Profession Blog for the information. For more on the case go to Law.com.

Consumer product safety commission product liability database

The Consumer Product Safety Commission has established a publicly available, searchable online database containing consumer product safety information. The database is required by Section 212 of the Consumer Product Safety Improvement Act of 2008, which created a new §6A of the Consumer Product Safety Act entitled "Publicly Available Consumer Product Safety Information Database." The database can be accessed already at SaferProducts.gov. For an article (originally published in the New York Law Journal) expressing some concerns over the database go here. It concludes, among other things that the database "is potentially a worthwhile tool, providing both consumers and manufacturers with information that might be valuable. But it also portends significant product liability concerns for companies, including for those that are falsely accused."

Lead paint, market share liability and due process

As you probably know, "market share liability" is a concept created to help a plaintiff establish the element of cause in fact when the plaintiff can't truly identify the specific person or entity who caused the injury. Originally, it was created to allow plaintiffs to recover in cases where the plaintiff joined as defendants the manufacturers of products that were chemically identical. For many years, the concept was used only in cases involving the drug "DES." That changed in Thomas v. Mallett, 701 N.W.2d 523 (Wis. 2005), one of only a couple of cases to recognize liability for injuries related to lead paint. Now, a new decision by the Federal District Court for the Eastern District of Wisconsin challenges the use of the market share liability doctrine in cases other than those for which it was originally created holding that the expansion of state common-law tort liability can be so overreaching and so contrary to settled legal expectations as to violate a defendant's right to due process. See Gibson v. American Cyanamid, Inc., (E.D. Wisc. June 15, 2010) (available here). In other words, Gibson declares unconstitutional the expansion of market share liability to non-fungible products. For a long comment on this case, go here.