Fifth Circuit affirms dismissal for lack of cause in fact in suicide for lack of warnings case

Coincidences sometimes can be uncanny. Last week, as we prepared to discuss Palsgraf v Long Island Railroad, Courtoons published two cartoons on the case in one week. Yesterday in class we spent a good deal of time discussing cases involving the risk of suicide and today the Drug & Device Law Blog is reporting that the Court of Appeals for the 5th Circuit has affirmed the lower court's ruling in a case in which the plaintiffs' decedent committed suicide allegedly induced by the off-label use of prescription drug Zyprexa. Zyprexa is an antipsychotic drug produced by defendant Lilly and approved by the Food and Drug Administration for the treatment of schizophrenia and bipolar disorder. In this case, it was prescribed to treat severe migrane headaches. One interesting aspect of the decision is the way in which the court approaches the issue of cause in fact. The court held that, in order to prove cause in fact, the plaintiff had to show that the doctor would not have prescribed the drug if it had contained an adequate warning. The court then affirmed summary judgment for the defendant because the plaintiff failed to present evidence to suggest that the doctor was unaware of the risks engendered by Zyprexa’s use at the time he prescribed the drug or that an alternative warning would have changed the doctor's decision to prescribe Zyprexa. The opinion has been officially designated as "not for publication" and thus does not have precedential value, but it is available here.

No tort duty to referring attorney

Here is an interesting case that discusses an issue I had never seen before. An attorney, representing a plaintiff in a medical malpractice action, referred the matter to another attorney. The attorneys and the client agreed that the attorneys would represent the client as co-counsel, with the attorney to whom the matter was referred having primary responsibility for representing the client, and the referring attorney rendering services if requested by the other attorney. The attorneys agreed to split any contingency fee 50-50. Ultimately, the client settled the claim, on advice of the attorney to whom the matter had been referred, for less than anticipated by the referring counsel. Referring counsel then sued co-counsel (the one to whom he had referred the case in the first place), asserting negligence, fraud, breach of fiduciary duty, intentional interference with contract, and breach of contract. The Court held that defendant co-counsel owed no tort duty to referring counsel, co-counsel fulfilled the contractual obligation between counsel, and co-counsel could not tortiously interfere with a contract to which co-counsel was a party. The opinion can be found here. Thanks to LegalProfession Blog for the information.

Report on injuries caused by heart medical devices

A new study released today by the national consumer rights group Center for Justice & Democracy finds that medical devices for the heart have caused thousands of needless injuries and deaths, yet patients currently have no legal recourse against reckless medical device manufacturers. The release of the report comes one day before dozens of patients living with faulty medical devices head to Washington D.C. to urge Congress to restore their legal rights. Legislation has currently been introduced in both Houses of Congress that seeks to do this by overturning the Supreme Court's ruling in Riegel vs. Medtronic. The full report is available here. Click here for an Executive Summary.

FDA Takes Enforcement Action Against Companies Marketing Unapproved Narcotic Drugs

The FDA Blog is reporting today that the "FDA announced that the Agency has taken enforcement action against several manufacturers of unapproved prescription narcotics. The 9 Warning Letters issued by FDA concern 14 narcotic drug products, including morphine sulfate, hydromorphone, and oxycodone. The Warning Letters direct the companies to stop manufacturing and distributing the specific narcotic drug products in certain dosage forms that lack FDA approval." Full story here.

More on whether defamation claim can be based on a true statement

I recently posted on the recent case from the Court of Appeals for the First Circuit which, applying Massachusetts law, found a plaintiff can sustain a defamation claim even though the statement upon which the claim was based was true (here and here). Here is a link to a comment on the case by columnist Julie Hilden of FindLaw.com. Her conclusion: ". . .the obvious First Amendment question was one the First Circuit should have taken up now, en banc – rather than dodging it, and leaving it for another day. In the First Amendment context, delay can be deadly, for it kills speech in the interim. Until this question again comes before the courts, Massachusetts citizens will speak a bit less freely than those in the other states – and that is a deep shame."

Michigan Moving Forward to End Drug Industry Immunity

You've seen the commercials with Jeff Daniels... "Come to Michigan... we give you the upper hand." What you may not know is that at least for pharmaceutical industries, part of the upper hand is based on the fact that Michigan is the only state in the nation that has a law in the books that prevents its residents harmed by pharmaceutical drugs to recover from the drug companies. The upper hand may be in jeopardy. A couple of days ago, for the second year in a row, the Michigan House of Representatives passed a package of bills that would effectively end the drug industry immunity in Michigan. Now the legislation moves to the State Senate, where last year’s bills died without ever coming to a vote. More information at The PopTort Blog.

On the distinction between malpractice and breach of fiduciary duty

Many jurisdictions recognize a cause of action against lawyers based on allegations of "breach of fiduciary duties" as distinct from a cause of action for malpractice. I am not sure that distinction is always warranted, but that would be the subject of a much longer conversation. At this point I want to report a decision of the New York Appellate Court which illustrates one important aspect of making that distinction. (Thanks to Mike Frisch of Legal Profession Blog for the information). In this case, the court held an insurance company had no duty to provide coverage for a firm when it was sued for a breach of fiduciary duty because the policy limited its coverage to claims which are caused by "any actual or alleged act, error, omission or personal injury which arises out of the rendering or failure to render professional legal services." The court held that "Inasmuch as there is no allegation of negligence or malpractice arising out of the . . . Firm's performance, or failure to perform, legal services, the claim in the underlying action does not fall within the ambit of the policy." This language suggests that a claim for breach of a fiduciary duty is based on intentional conduct, which is really what was argued in the case. The claim was based on the alleged intentional misappropriation and use by the firm of the client's trade secrets.

New third circuit decision on preemption

The Drug and Device Law Blog is reporting today that the Court of Appeals for the Third Circuit has just affirmed summary judgment on grounds of express preemption under the Vaccine Act in Bruesewitz v. Wyeth, (available here). The court, examining the history of Vaccine Act, concluded that Congress intended to apply Restatement (Second) of Torts §402A, comment k (1965) across the board to bar all design defect claims, whether sounding in negligence or strict liability, against vaccines covered by the Act. The opinion creates a split of authority by specifically disagreeing with the analysis of the Georgia Supreme Court in American Home Products Corp v. Ferrari, 669 S.E.2d 236 (Ga. 2008) (available here). As D&DLB says, given that Ferrari is currently before the Supreme Court on certiorari, "the split between the federal court of appeals and a state's highest court on a question of federal preemption raises the prospect of yet another High Court preemption battle regarding an FDA-approved product."

Comment on the Consumer Product Safety Commission

The PopTort Blog has published an interesting comment called Debunking A Major CPSIA Myth in which it argues that the notion (or claim) that Congress must change or scrap the Consumer Product Safety Act because it has rendered the CPSC powerless to issue exemptions to small enterprises is false. The comments concludes like this (links are in the original): "So listen up, small enterprise folks. The CPSC had three different opportunities to come to your aide and it turned its back on you every time. This agency is not powerless to give you exemptions and it says so itself. It just chooses not to. In the final analysis, there is no need for Congress to change this law. What we need is a change in the CPSC leadership."

Top torts stories of the past week

Click here for TortsProf Blog's list of links to the most interesting stories of the week ending March 27, 2009. Thanks to TortsProf Blog for the information.