Court holds police can be liable for injury caused by taser

The Wall Street Journal is reporting today that the 9th Circuit Court of Appeals on Monday agreed with a lower court ruling that an officer from the Coronado, Calif., Police Department wasn’t immune to a damages lawsuit filed by a civilian after a Taser encounter in 2005. In fact, the court ruled, the officer violated the civilian’s constitutional right “to be free from excessive force.” Click here for the opinion, and here are stories from the Wall Street Journal Blog, Law.com, San Jose Mercury News and the SF Chronicle. Professor Jonathan Turley has chronicled many reported cases of shocking news involving questionable use of tasers. Here are just a few examples. If you go his website and search using the word "taser" you will find many others, many with actual video footage of the event: Colorado Police Taser Unruly 10-Year-Old Boy Because Using Pepper Spray Would Have Endangered Officer Shock Video: New York Officer Tasers Mother in Front of Children After Minor Traffic Stop Ohio Police Taser Man After He Runs Into Burning Home to Save Sister and Friends Police Officer Tasers 10-Year-Old Girl Who Refused to Take Shower Pennsylvania Man Dies After Hit By Multiple Tasers Texas Police Shoot Dog and Then Taser Dog’s Deaf Elderly Owner For Failing to Obey Commands Alaskan Police Taser 81-Year-Old Minister in Traffic Stop Shock Video: Utah Officer Tasers Man for Traffic Ticket in Front of Pregnant Wife Sheriff Under Investigation After Allegedly Giving Taser to Man Who Appears on Video to Shock Son as Joke

Another end of the year top 10 list

A few days ago I commented that this is the time of the year when you start to see "top ten lists"... Here is another one: New York Personal Injury Blog's Year in Review list. It has links to the blog's favorite items of the year. There is a lot of interesting stuff here. Some are related to torts, some are related to professional responsibility and ethics. Take a look.

CPSC to lift stay of enforcement of Consumer Product Safety Act

A few days ago I posted that the Consumer Product Safety Commission was likely to lift its stay of enforcement of certain testing and certification requirements under the Consumer Product Safety Improvement Act. Today, the FDA Law Blog is reporting that the Commission has in fact voted to lift the stay of the testing and certification requirements for certain products and extend the stay for others. Go here for the full story.

Another comment on med mal liability and the health care reform bill

For a short comment on med mal and the health care bill go here.

Lawsuit to test Mississippi tort reform

The TortsProf Blog is reporting on a case before the Mississippi Supreme Court that challenges the cap on non-economic damages imposed by a tort reform statute. In the case, a jury awarded actual damages to cover things like medical costs and additional non-economic damages with the total coming to about $4 million. The judge, however, lowered the non-economic damages to $1 million, which is the cap put into law by the Mississippi Legislature in 2004. The plaintiff is now challenging the constitutionality of the limit. Go here for more on the story. Thanks to the TortsProf Blog for the information and link.

Whistleblower who exposed pharmaceutical's illegal marketing of drug gets recognized as most influential person in business ethics

John Kopschinski, a former sales rep whose lawsuit led to the record breaking, eye rolling, jaw dropping $2.3 billion settlement, exposed pharmaceutical giant Pfizer's illegal sales and marketing efforts to promote its Bextra painkiller, was named the most influential person in the world of business ethics by the Ethisphere Institute. Go here for more on the story.

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 for my own selection of top news stories.

Review of recent decisions on preemption

The FDA Law Blog has a long review of cases related to preemption here.

CPSC to lift stay of enforcement of Consumer Product Safety Act

The FDA Law Blog is reporting today that the Consumer Product Safety Commission is likely to lift its stay of enforcement of certain testing and certification requirements under the Consumer Product Safety Improvement Act. Go here for the full story.

Interesting new case about generic drugs

The Court of Appeals for the Eighth Circuit recently decided an interesting case that presented the following two questions: (1) can a brand name manufacturer be liable for an alleged inadequate warning on a generic drug, where the plaintiff never used the brand name product? and (2) are warning claims against generic manufacturers preempted by the FDCA requirement that generic drugs have the same labeling as their brand name bioequivalents. The court said NO to both questions. The case is Mensing v. Wyeth, Inc., No. 08-3850 (8th Cir. Nov. 27, 2009) (available here). Both holdings make sense to me. Although there is at least one case out there that decides the first question in the affirmative (Wyeth v. Conte -- see here and here), it is difficult to justify that result and I believe most, if not all, other courts that have addressed the issue have rejected the analysis in that case. The holding on the issue of preemption is more controversial, but not surprising. The defendant's argument was based on Bush-era FDA statements in the Federal Register that had no force of law. As, the Drug & Device Law Blog points out, "[t]he beating that the FDA's 2006 preemption preamble took in Levine pretty much presaged the same treatment for these other FDA statements about "sameness" and the ability of generic manufacturers to alter their warnings." For a long comment on this case, check out the Drug & Device Law Blog's post here.