Alabama Supreme Court holds generic drug user can sue brand name manufacturer

In June 2011, the U.S. Supreme Court held in Pliva v. Mensing that injured patients' state-law failure-to-warn claims against generic-drug manufacturers are preempted by federal law because the Food and Drug Administration requires those manufacturers to use labeling that is the same as the brand-name labeling. This opened the door to claims by generic drug users against manufacturers of name brand drugs even if the plaintiff did not take the name drug.

Now the Alabama Supreme Court has put the issue right at the forefront in a case that is likely to have important national implications. In a case called Wyeth v. Weeks, available here, the Court held that the user of a generic drug can sue the manufacturer of the equivalent brand name medication even if the plaintiff only used a generic equivalent.

Defendants and their supporters immediately began to cry foul arguing that this could result in a defendant having to pay for injuries that were not caused by their product. See here, for example.

The argument sounds reasonable at first but I don't think it is that simple once you think about the reasoning behind the plaintiff's claim-that the name manufacturers are the ones who determine what the awnings of the generic products are going to say. If that is true, and if the warning was inadequate, then you can argue that the conduct of the brand name manufacturer did contribute to cause the injury.

Of course, that's two big "ifs" in that sentence, but I don't see anything wrong in allowing the plaintiff a chance to prove them. The one weakness in the plaintiffs' claim, though, might be a recent study that says that, even though generics manufacturers are required to use the same warnings used by brand name manufacturers, the reality is that few actually do. If the generic drug manufacturer changed the warning unilaterally, the brand name one should be able to claim that was not its fault.

The New York Times has more on the story here. AboutLawsuits also has more on the story here.

New lawsuit alleges "energy drink" delivers no more energy than coffee

At a time when there is an on-going debate as to whether so called "energy drinks" are dangerous products because, at least in part, they have too much caffeine (see here), a new lawsuit claims exactly the opposite.  The ABA Journal is reporting (here) that a class action lawsuit filed last Tuesday attacks the marketing claims by the makers of Red Bull that the energy drink “gives you wings” which they are apparently interpreting is a claim that Red Bull improves physical and mental performance. The suit claims the popular drink is no better at providing energy than a cup of coffee.  Reuters has more on the story.

UPDATE 2/6/13:  AboutLawsuits.com has more details on the story here.

Provision in NY gun law seeks to expand duty created by Tarasoff

As reported in the Wall street Journal law blog, a provision in New York state's new gun-control law that requires mental-health professionals to report potentially dangerous patients is drawing concern from experts who fear it could discourage people from seeking treatment and treads on client confidentiality.

As you may remember, many jurisdictions have adopted the view that therapists have a duty to warn unsuspecting possible victims, at least as long as they are identifiable, by following the reasoning in the famous case Tarasoff v Regents of the University of California. Yet, the provision in the NY gun law would expand this duty tremendously.

According to the article, the measure requires physicians, psychologists, nurses or clinical social workers to alert local health officials if a patient "is likely to engage in conduct that would result in serious harm to self or others." This is an extremely vague and broad duty and I think the criticism is well deserved.

Even the notion of a duty adopted in Tarasoff is controversial, which explains why it was not adopted everywhere. The duty proposed in the NY law is even broader. It is difficult to understand when the duty would start and it is not frivolous to argue that it could have a negative effect on the ability of therapists to do their job.

For more on the story go to the New York Times. USA Today has more on the story here.

Missouri Court of Appeals interprets notion of primary assumption of the risk correctly and reinstates case against KC Royals (and their mascot)

Almost two years ago, I began to follow an interesting case filed against the Kansas City Royals seeking compensation for injuries suffered when a spectator at a KC Royals baseball game was hit by a flying hot dog tossed by the team's mascot.  For my original posts on the case go here and here.  You can see a video of the mascot shooting hot dogs here, although, the claim in the case referred to a hand tossed hot dog.

In March of last year the jury reached a verdict on the case. After deliberating for about an hour, the jury found in favor of the team.  See here.

But that is not the end of the story.  This week, the  Missouri Court of Appeals reversed the judgment and reinstated the case against the Kansas City Royals. The case is Coomer v. Kansas City Royals, and you can read the opinion here.  Go here, here and here for comments on the decision.

The case revolves around the notion of "primary assumption of the risk" which I have criticized many times before (see, here and here for example).

However, as opposed to many of the other cases I have criticized on the subject, the court in this case does a better job of explaining the issue.

Primary implied assumption of risk operates to negate the negligence element of duty. . . . The plaintiff’s voluntary participation in the activity serves as consent to the known, inherent, risks of the activity and relieves the defendant of the duty to protect the plaintiff from those harms. . . . Because the defendant has no duty to protect against those inherent risks, he cannot be found negligent for causing the plaintiff injury. . . . The risks assumed, however, “are not those created by a defendant’s negligence but rather by the nature of the activity itself.” . . .

The bottom line is that primary assumption of the risk has nothing to do with assumption of the risk.  It has nothing to do with an evaluation of the plaintiff's conduct in order to determine if he/she voluntarily decided to undertake a known risk.  Primary assumption of the risk is a policy question that asks the court to decide whether to impose a duty on the defendant to act to protect others from certain risks.  

It is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the game do not have a duty to protect them.  Neither of the two parts of this statement is entirely correct though, since the spectators who sit behind home plate (and half way to first and third bases) do not assume that risk and the defendants do have a duty to protect them.

So, in the hot dog tossing case, the question becomes whether there should be a duty to protect spectators from other risks involved in watching baseball games.  As the court suggests, the answer at this point is "maybe" if the risk is inherent to the game but probably no if the risk is not inherent and, more so, if it is created by the negligence of the defendant himself.  As the court explains,

The issue is thus whether the risk Mr. Coomer encountered was one which inhered in the game, or one which would be created by the defendant’s negligence. . . .  Mr. Coomer argues that the trial court erred in submitting the defense to the jury because “the risks created by a mascot throwing promotional items do not arise from the inherent nature of a baseball game.” On these facts, we agree.

 I do too.

Update on the debate on the dangers of highly caffeinated "energy drinks"

Not too long ago I posted a series of posts on recent reports related to the debate on whether the so called "energy drinks" contained dangerous levels of caffeine.  See here, here, here and here.

In the most recent of these posts, I reported on an article in the Journal of the American Medical Association, available here, detailing how the ingredients in energy drinks may be harmful to some individuals.  

Adding fuel to the fire, yesterday The New York Times reported that three Democratic lawmakers sent letters to 14 marketers of highly caffeinated energy drinks requesting information about the products’ ingredients and any company studies showing their risks and benefits to children and young people. Go here for the NYT article.

In addition, AboutLawsuits and Injured have commented on the subject again here and here. Injured's post reports that emergency room visits associated with energy drinks have doubled in the past four years, according to a study by the Substance Abuse and Mental Health Services Administration.

UPDATE 1-21-13: AboutLawsuits has more on the story here.

Toyota settles case related to alleged sudden acceleration problems

AboutLawsuits.com is reporting that Toyota has reached a settlement agreement in a product liability lawsuit brought by the family of two people killed in an accident, which was allegedly caused by sudden acceleration of their Toyota Camry. Problems with uncontrollable acceleration led to the recall of millions of Toyota vehicles in 2009 and 2010, and the auto maker still faces hundreds of lawsuits brought on behalf of vehicle owners. Go here for the details.

FDA addresses issues related to sleeping pills

In class, I often use a certain commercial for sleep aid Ambien to discuss issues related to adequacy of warnings, direct to consumer drug marketing, and more. I like the commercial because it is one minute long and almost exactly half of it is the narrator listing all the side effects and dangers of the drug, as you see images of people looking happy and healthy.
Ambien is back in the news today as the FDA is asking drug makers that sell sleeping pills that contain the zolpidem active ingredient – a list that includes Ambien – to lower current recommended doses by half - at least for women. For more details on this story go to the New York Times, Pharmalot and AboutLawsuits.com, CBS Online and CNN.
By the way, if you search You Tube for Ambien, or Ambien side effects you will find lots of videos of people complaining about the drug and of people who have filmed others while under the effects of the drug.

Oral argument in case about whether to allow claim for more than merely market value of a pet

About ten days ago, I reported (here) that the Texas Supreme Court had a case before it on whether the owners of a dog accidentally euthanized can sue for the sentimental value of the family pet or merely for the replacement value of their pet.  (I have argued before that I really don't see why pet owners should not have the right to try to claim emotional distress due to the deaths or injuries to their pets (see here, here and here) and there are a few cases out there that have recognized these types of claims, (See here for example.)

The Texas Supreme Court heard oral arguments on the case yesterday.  If you have Microsoft "Silverlight", you can see the argument here and you can get all the relevant documents in the case here.  The Associated Press has a report here.

Dog attacks statistics for 2012

Dogsbite.org, a very good source of information related to cases involving injuries caused by dogs, has published a report on dog attacks causing fatalities in 2012.  Among its findings, it  states that there were 38  fatal dog attacks in 2012 in the US.  61% of the deaths were caused by pit bulls despite the fact that they make up less than 5% of the total U.S. dog population. In the 8-year period from 2005 to 2012, pit bulls and rottweilers accounted for 73%  of the total recorded deaths.   Go here for all the information.

More on the sentimental value of pets

Last week I posted a note linking to older posts on whether courts should recognize emotional damages in cases claiming the loss of a pet (here).  The links were to posts on a few cases that have decided the issue, some in favor of recognizing the claim and some denying it.  One of the recent cases denying the claim came out of New Jersey.  Friend of the blog Prof. George Conk then sent me a link to his comment on this case which is available here.  I had missed it when he posted it originally.  Sorry about that, George!  And thanks for the link.