Football is not an "obviously dangerous activity" ..?

Playing tackle football without equipment is not an obviously dangerous activity, a federal appeals court has ruled in a decision that upholds the dismissal of a claim brought by a Pittsburgh teenager who was rendered quadriplegic while playing football at a state juvenile detention facility. The court held among other things that there was insufficient evidence of a "substantial risk of serious harm." Go here for the full story.

Mass. Appeals Court adopts "apparent manufacturer" approach to products liability

A little over a week ago the Appeals Court of Massachusetts upheld a $3.35 million jury verdict against Otis Elevator Company for an injury to a four-year old boy caused by a defective escalator that bore Otis Elevator's name but that was in fact manufactured by an independent Chinese company, thus applying part of the "apparent manufacturer" doctrine from the Restatement (Third) of Torts: Product Liability. Other Massachusetts cases had previously applied the apparent manufacturer doctrine, but no reported Massachusetts case had previously applied the doctrine to a person or entity outside the distribution chain (i.e., a nonseller). The Court concluded that a nonseller trademark licensor who participates substantially in the design, manufacture, or distribution of the licensee's products may be held liable under Massachusetts law as an apparent manufacturer. You can read the case here: Lou v. Otis Elevator Co. Go to the Boston Personal Injury Lawyer blog for more information and links.

FDA to consider whether to withdraw Meridia from the market

The FDA will ask an advisory panel meeting this Wednesday whether Abbott Labs’ Meridia diet pill should be withdrawn from the US market. The drug was withdrawn in Europe eight months ago. The FDA meeting follows a nearly year-long safety review conducted by the FDA, which was launched after a study published last November found that Meridia helped its users achieve only a small amount of weight loss while increasing their risk of heart problems. Go here and here for the full story.

Ninth Circuit upholds verdict in favor of 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 the Ninth Circuit Court of Appeals has upheld the jury verdict clearing Chevron Corp. of the alleged human rights abuses. Go here for the full -- although extremely short -- story. The court's opinion can be found here.

This Week's Top Stories

Go here for the list of last week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here and scroll down for my own selection of top news stories.

Looking for Proof Tort Reform Reduces Health Costs?... Keep looking... Part V

During the height of the debate over the health care bill, there were a number of studies and reports published that documented how tort reform efforts would not lower health costs. For links to those articles go here, here, here and here. Lawsuits.com is now reporting on a new study from the Harvard School of Public Health, published in the September issue of the journal Health Affairs, that finds that the combined costs of medical malpractice and so-called defensive medicine make up only 2.4% of the total costs of health care in the United States. The study found that attempting to reduce the number of medical malpractice lawsuits would result in only a negligible effect on the cost of health care, and reducing the cost of defensive medicine would do little more. Go here for the full story. UPDATE 9-10-10: The PopTort has a comment on the study here.

Settlement news

Several settlements in the news today: 1. A New Jersey appeals court has upheld a $7.5 million verdict in a mesothelioma lawsuit that was awarded for a woman who was exposed to asbestos fibers while washing her husband’s work clothes for three decades. Go here for the full story. 2. Ford Motor Co. has reached a settlement with the family of a 22-year-old Mississippi man who died in a Ford Explorer rollover accident following a tire blowout. The undisclosed settlement came after a Jasper County jury awarded the family of Brian Cole $131 million at trial. Ford agreed to a settlement after the verdict to avoid a punitive damages award that could have been many times the compensatory amount. Go here for the full story. 3. Continental Airlines has reached a settlement agreement in at least two wrongful death lawsuits filed as a result of a 2009 airplane crash in Buffalo, New York that killed 50 people. Go here for the full story. 4. A California nursing home operator has agreed to pay $50 million to settle a lawsuit that threatened to bankrupt the company after a jury ordered it to pay $677 million for failing to provide enough nurses and staff. Go here for the full story.

South Carolina Adopts the Risk-Utility Test as the Exclusive Test in Products Liability Design Cases

As you probably know, one of the most debated questions in product liabiity law is the proper standard to use to determine if a product is defective in its design. The Restatement 2d originally suggested a consumer expectations test while many jurisdictions adopted a risk-utility analysis. Many -probably most, at least until recently - jurisdictions recognized both. Then, the Restatement 3d adopted a different view which includes a requirement that the plaintiff show a reasonable alternative design, a new approach that a number of jurisdictions have rejected. About three weeks ago, the Supreme Court of South Carolina had a chance to clarify the state of the law on the subject and adopted the use of a risk utility analysis as the exclusive test to determine design defects. The case is called Branham v. Ford Motor Company and it is available here. For comments on it, go here and here. I don't have a major problem with adopting a risk-utility analysis but I do have a problem with the requirement that the plaintiff show a reasonable alternative design. It is an unecessary requirement, the only purpose of which is to make it more difficult for victims to be able to support their claims and it goes contrary to the goal of encouraging the design of safer products.

6th Circuit decides preemption case related to a manufacturer's decision to place a drug on the market

Last year, the Supreme Court decided in Wyeth v. Levine that federal law did not preempt certain state law failure to warn claims. The Abnormal Use product liability blog is now reporting that the Sixth Circuit has just extended the holding in Levine in a case called Wimbush v. Wyeth, decided about three weeks ago holding that a plaintiff could pursue negligence claims relating to a manufacturer's decision to bring a drug to market, i.e., a pre-labeling, pre-approval claim. Go here for a comment on the case.

Learned intermediary doctrine protects pharmacy from having to alert customer of dangerous drug interaction

While some jurisdictions are adopting the learned intermediary doctrine (here) and others are abandoning it (here), the Illinois Court of Appeals has just issued a short but interesting case on the issue of whether the learned intermediary doctrine relieves a pharmacy from a duty to warn a customer of a potential drug interaction.

As you probably know, the learned intermediary doctrine provides that manufacturers of prescription drugs do not have duty to warn consumers directly of the risks involved in using prescription drugs because they can rely on the physicians who prescribe them to do so. In Illinois, the doctrine has for a long time, and with only one exception, been applied to exempt pharmacies and pharmacists from liability for failing to give warnings to patients. Part of the reasoning for extending the use of the doctrine in this manner is to prevent the pharmacist from second guessing the physician -- who the doctrine assumes is the best qualified and best positioned person to determine what is best for the patient -- and thus to prevent having the pharmacist interfere with the doctor-patient relationship.

The new case decided by the Illinois Court of Appeals is called DiGiovanni v. Albertson's Inc and it is availble here. In it, the court follows the long standing rule in the state that recognizes the protection provided by the learned intermediary doctrine for pharmacists. Given the long standing approach on the issue in the state and given the specific facts of the case, the case is correctly decided, but I have some mixed feelings about it.

As I have commented before (here), it may be time to revisit the whole LID doctrine to begin with. And, I believe it is unnecessary to apply it to pharmacists. I do not see a problem in holding pharmacists to the same standard of care that we hold everyone else. They should act like reasonable people under the circumstances. If they do, there will be no liability. The result in this case would have been the same had we applied that simple rule.

 The facts were clear that the pharmacist acted reasonably. The record indicates that the pharmacist called the physician prior to filling the prescription regarding the potential interaction, and the physician indicated that he would monitor the patient. Under those circumstances, the pharmacist was reasonable in relying on the expertise of the doctor. Perhaps the pharmacist could have told the patient to check with his doctor about the possible drug interaction too, but I am not sure that we can say that - under the circumstances - failing to do so should result in liability.

I guess my point is that the main concern here should be to develop a doctrine that seeks to provide the consumer with more protection. If it requires that pharmacists use their expertise by double checking with the doctor or telling the patient do double check with the doctor before exposing the patient to a known risk, so be it. The burden on the pharmacist to make a phone call or give a word of warning to a customer seems well worth it to me.