Tuesday, March 31, 2009

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 The opinion has been officially designated as "not for publication" and thus does not have precedential value, but it is available here.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."

Saturday, March 28, 2009

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.

Friday, March 27, 2009

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.

Thursday, March 26, 2009

More fun with Mrs Palsgraf

David Mills keeps making fun of poor Mrs Palsgraf in his website Courtoons! Here is today's cartoon:

Tuesday, March 24, 2009

Med mal reform in Hawaii

TortsProf Blog reports today that "As Pacific Business News reports, House Bill 1784 is moving forward in the Hawaiian legislature: HB 1784 limits noneconomic damages to $250,000 in medical malpractice claims against certain specialists who practice in areas such as emergency medicine, neurological surgery, obstetrics and gynecology, orthopedic surgery and general surgery. It also caps at $3 million the award for gross negligence."

Duty to non-client in legal malpractice setting?

Assume a client asks an attorney to prepare a will and discloses to the attorney the names of the beneficiaries she wants included in the will. The lawyer begins to prepare the documents but the client dies before the attorney completes the project. Because a will was not prepared for execution prior to the client's death, the estate passes through intestacy and the intended beneficiaries are affected. Assume it can be argued the attorney was negligent in handling the matter for waiting so long in getting the documents ready. Should the beneficiaries have a cause of action against the lawyer for his negligence? That is the question for the court in a new case just decided by the Supreme Court of South Carolina (available here). Some states have held that an attorney drafting a will owes a duty of care to the intended beneficiaries, even if they are not the clients of the attorney. In cases like those, it has been suggested that it is not a good idea to require privity of contract for liability. Since the attorney is being asked by the client to do something to benefit others, the law should allow those "others" to sue if the attorney breaches his or her duty of care. Also, in many cases the malpractice may not be discovered until after the client’s death. However, those cases recognize that an attorney owes a duty to a non-client intended beneficiary of an executed will where it is shown that the testator’s intent has been defeated or diminished by negligence on the part of the attorney, resulting in loss to the beneficiary. Here, the question is whether the non-client has a malpractice claim for negligent failure to draft the will in time. The Court refused to recognize the claim. Adopting the reasoning in a similar case from another jurisdiction, the Court concluded that imposing liability "would create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily. Fear of liability to potential third party beneficiaries would contravene the attorney’s primary responsibility to ensure that the proposed estate plan effectuates the client’s wishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen."

FDA approves use of Lexapro for kids despite pending lawsuit and unfavorable study

Just weeks after prosecutors accused Forest Laboratories Inc of illegally marketing its anti-depressants Celexa and Lexapro to children and paying pediatricians kickbacks, U.S. health regulators have approved Lexapro for depression in kids. Here's a comment on this published by The PopTort Blog: "Several weeks ago, we told you that the U.S. attorney’s office in Boston has filed a civil suit against drug maker Forest Laboratories, alleging the company illegally marketed Celexa and Lexapro, two versions of the anti-depressant, “citalopram,” for unapproved uses in children and adolescents. The complaint had accused Forest of burying an unfavorable study (with the help of the FDA) that showed the antidepressant was ineffective for pediatric use, and possibly even harmful. Be that as it may, the FDA has now decided that Lexapro is just fine for kids, approving the $2 billion per year moneymaker for children aged 12-17. According to Forest, the unfavorable test notwithstanding, the FDA concluded that the value of the drug’s use in children could be “extrapolated” from adult data and from comparisons of how Lexapro was absorbed by kids and adults."


Here's a quiz I give my students for fun at about the midway point in the semester (which for us is just about now). Some of the clues refer to very specific things I have said in class, so you readers out there who are (or were) not in my class may not get them, but you may have fun trying it out anyway. If you need more clues post your comments here. I can probably give you even more obscure hints. (NOTE: if the link does not work for some reason, try again later or send me a message and I can send you a copy of the quiz. Here is a different link to a printable version.).

Monday, March 23, 2009

Cause of action alleging drug so dangerous no possible warning is adequate is still preempted

Since the Supreme Court decided Wyeth v Levine, a number of cases have been remanded by appeals courts to be reviewed in light of the ruling in that decision. One such case was Longs v. Wyeth, 536 F. Supp.2d 843 (N.D. Ohio 2008), a fen-phen decision in which the plaintiffs argued that the drug in question was so dangerous that there was no adequate warning that could make it "safe" enough for state tort law. That’s the same thing as saying that, as far as state law is concerned, notwithstanding the FDA’s approval, the defendant should never have sold the product at all. The court originally held that the claim was preempted by the FDA's action and last week, on reconsideration after Wyeth v. Levine, the same judge held that nothing had changed. Drug and Device Law Blog has the story here.

Tort liability or religious rights?

Elsewhere on this blog I have posted several comments on issues related to whether there should be liability for damages caused because of the exercise of religious rights. Professor Jonathan Turley has posted a note about a new case on the subject that is worth checking out. The case involves a mother who has sued the Church of Scientology after her 20 year old son committed suicide. He was on antidrepressants, but his father allegedly took away the prescription drugs as part of his Scientology beliefs. The mother, who is not part of the church, says that her son was put into a church-oriented drug treatment program and that two other Scientology members helped lock away the medicine. The Church is moving to dismiss on the ground that the death did not occur on church grounds and the men were not formal officials with the church. For the story and more links go here.

Cause of action for damages caused during a deposition?

There are many cases available to illustrate issues of misconduct during discovery in civil cases - particularly during depositions. The New Jersey Appellate Court has just added a new one with a twist. In this particular case, the plaintiff in a wrongful death case filed a complaint against the attorney for the defendant to recover for damages allegedly caused by the attorney during the deposition of the plaintiff. The attorney taking the deposition represented a doctor whose conduct the plaintiff alleged resulted in the plaintiff's daughter's death. During the deposition, the father's lawyer objected to a certain line of questions by the doctor's lawyer and threatened to end the deposition. This type of threat, by the way, has been held to be misconduct by other courts but it was not questioned here. After that exchange the deposition continued without incident. Typically, these types of cases involve the court evaluating the conduct of the lawyer in order to decide whether to impose sanctions. What is new about this issue here is that the plaintiff then turned around and sued the defendant's lawyer. The suit contended that the deposition conduct was "outrageous and inhumane" and was "so reprehensible, despicable, nasty, venomous, malevolent and horrid as to violate the most basic foundation of humanity and decency." The court, however, held there was no basis for the claim. The lawyer had the right to, in fact had a duty to, closely question and challenge the witness. The opinion is available here. I agree with the decision of the court. As unpleasant as it can be, witnesses have to understand that lawyers have a good deal of leeway while conducting a deposition and it is the witness' lawyers duty to prepare him or her for it. If anything, I think the conduct of the lawyer for the witness in this case was more questionable. He had no right to threaten to end the deposition the way he did and if he had ended it, the defendant's lawyer would have been able to support a claim for sanctions and costs. Unfortunately, many depositions have become shows for lawyers to do a lot of grandstanding and yelling and courts are inconsistent in the way they try to regulate them. Here is an example that has been floating over the internet for years:

Palsgraf v LIRR

I have stated in class that Palsgraf v Long Island Railroad is one of those cases many lawyers remember by name long after they finish law school. We will discuss this case this week. Check out today's cartoon at "Courtoons"

Friday, March 20, 2009

Top torts stories of the past week

Click here for a list of links to the most interesting stories of the week ending March 20, 2009. Thanks to TortsProf Blog for the information.

Wednesday, March 18, 2009

Comment on Wyeth v Levine

Professor Anthony Sebok, whose columns in FindLaw I often recommend, has posted a comment on Wyeth v Levine. It is available here.

Update on the Consumer Product Safety Act

Last January, I posted a series of notes about the on-going controversy over the Consumer Product Safety Act and its regulation of lead levels in toys. (Click on the topic "Consumer Product Safety Commitssion" on the right side panel to access those articles.) Eventually, the Commission stayed the enforcement of the new law. Today, the PopTort blog has posted an update. It states, in part, (including links in the origianl post): "Incredibly, toys with illegal lead levels continue to be sold in discount stores, showing how all the more urgent it is that this law is enforced. Unfortunately, the Consumer Products Safety Commission is STILL dragging its feet with respect to providing guidance to smaller enterprises (like home businesses and libraries) as to how the law applies to them—and the longer that goes on, the more apparent it becomes that the agency’s inaction is part of a deliberate attempt to sabotage the law. . . . . [W]e can only conclude after all this time that the corporate shills within the CPSC (like former Director of Consumer Affairs for the U.S. Chamber of Commerce and current CPSC head, Nancy Nord, who has always loathed this law) are intentionally trying to kill the CPSIA—at the expense of kids." For the full article go here.

1st Circuit Denies Review of Libel Ruling

The 1st U.S. Circuit Court of Appeals today turned down a petition asking for an en banc hearing of the controversial decision Noonan v. Staples, in which a three-judge panel ruled that truth is not an absolute defense to libel. The order denying the petition states, in part: "Staples did not timely argue that the present matter was a matter of public concern or that the statute was unconstitutional as applied to a matter of private concern. . . . Further, Staples has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down a state statute. . . . . Staples still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern. . . . And the Supreme Court has stated that as to matters of private concern, the First Amendment does "not necessarily force any change in at least some of the features of the common-law landscape." . . . Thus, whether § 92 is a "feature[] of the common-law landscape" left unchanged for matters of private concern is an issue on which we now take no position." Thanks to Media Law Blog for the information.

Tuesday, March 17, 2009

Health care reform and medical malpractice

As the Obama administration starts to work on so called "health care reform," dead old themes regarding medical malpractice reform are coming back to life. In response, The PopTort reminds us that "everyone from the Congressional Budget Office to insurance experts (and also here) have consistently shown that malpractice premiums and claims are each a tiny percentage (1-2 percent) of overall health care costs. Actually, total medical malpractice payouts, for all injuries and deaths caused by medical negligence in the nation (hovering between $5 billion and $6 billion annually) is less than half of what Americans pay for dog and cat food each year. Yet the cost of preventable medical errors, which kill up to 98,000 people in hospitals each year, is a whopping $17 billion to $29 billion each year." For a very good and very readable discussion of many of the issues regarding medical malpractice reform, take a look at Tom Baker's The Medical Malpractice Myth. For an excerpt, go here.

Tort reform by eliminating lawyers' fees

Public Citizen reports today on an interesting development in Minnesota where an old "reform" tactic is back in style. As I have stated many times before, most tort reform efforts are directed at either making it more difficult for plaintiffs to bring their claims or making sure they don't recover as much when they do. An old tactic in this effort is to attack the plaintiff's lawyer's fees. By limiting the fees, it is likely many plaintiffs will not be able to find representation. Some legislators in Minnesota have added their names to those who want to pursue this avenue of reform. They have proposed a bill that states "When a statute provides for the award of attorney fees to a party that has recovered money damages, the court, in setting the amount of attorney fees, must, in addition to other factors, take into 1.10consideration the reasonableness of the attorney fees sought in relation to the amount of 1.11damages awarded to the prevailing party." As argued in Caveat Emptor, "maybe that sounds innocent, or even logical, on its face. If the damages awarded to the prevailing party are small, shouldn’t the attorney fees be small, as well?" The problem is that, if enacted, this law would result in a drastic increase in wasted court time, attorney resources, and dissuade Minnesota citizens from seeking redress when their rights are violated. This is particularly true in cases of consumer protection laws, most of which provide relatively small amounts of money as compensation. Take for example a law that states that a landlord who changes the locks in order to exclude a tenant is liable for $500 plus attorney fees and costs. Because it is not worth to hire a lawyer to sue over $500, the law tries to ensure that tenants be able to find representation by making the landlord pay the tenant’s lawyer. Thus, the lawyer can spend more than $500 and the client can get his compensation in full. This ensures the client gets the representation he or she needs and that he or she gets full compensation. The new proposed law would eliminate this and make much of consumer protection law essentially meaningless.

Sunday, March 15, 2009

September 11 litigation

Next week we will discuss In Re September 11 Litigation, a case that discusses the concept of proximate cause. Out of coincidence, three days ago The New York Times published a story on the different approaches used by victims of the September 11 attacks to seek compensation for their damages. The story is available here. The PopTort has a comment on the story and on other aspects of the case here. Thanks to the PopTort for the story.

Friday, March 13, 2009

Op ed piece on Wyeth v Levine

Here is a link to an Op-ed piece published in yesterday's Chicago Tribune by one of the lawyers who runs the Drug & Device Law Blog attacking the Supreme Court's decision in Wyeth v Levine.

Medical device preemption

Here is a link to a very long comment on the topic of medical device preemption. It provides a lot of information on the subject -- from the point of view of the defendants.

Liability for failure to prevent domestic abuse?

Here is a new case from the Illinois Supreme Court that combines a couple of topics we discuss in class. One of them, not central to the decision in this case, relates to the possible duty of a medical professional to disclose information obtained from a patient in order to prevent the patient from hurting someone else. The other, the key question in the case, relates to whether the state has a duty to provide police protection to someone the state knows has been the victim of domestic violence and who has a protective order against the person who hurt her in the past.

 In this case, a man physically and emotionally abused his girlfriend for a number of years. Eventually, she obtained several protective orders against him and he was arrested several times both for domestic battery and for violating the orders. At some point thereafter, the man's chiropractor contacted the Chicago Police Department to report that the man told the chiropractor he was looking to hire someone to kill the woman and later that he had found someone for the job. During the next two months - up to the date of her death- the woman called the Palatine and Glenview police departments many times requesting that they either arrest the man or provide supervision and protection for her. However, she received no police protection and the man murdered the woman.

The special administrator of the woman's estate, filed suit against the Village of Palatine, the Village of Glenview and individual police officers, alleging that they willfully and wantonly breached duties owed to the decedent under the Illinois Domestic Violence Act. Section 305 of the Domestic Violence Act provides that ''any act of omission or commission by any law enforcement officer acting in good faith … shall not impose civil liability … unless the act is the result of willful or wanton misconduct.''

The estate argued that the police's conduct was willful or wanton because they were aware of the order of protection, knew that the abuser/murderer was in violation of the order, had been informed of all facts necessary to take immediate action against him and had probable cause to arrest him based on the information they had received. The trial court granted the defendants' motion to dismiss.

The appeals court reversed but the Supreme Court reversed the appeals court and held the case had been properly dismissed. The Supreme Court said that a public entity or public employee enjoys absolute immunity for a failure to provide police protection, prevent the commission of a crime or to make an arrest.

Although under certain circumstances police intervention may be required, there is no generalized, open-ended duty to protect victims of domestic violence. There really is no duty "to serve and protect."

According to the Domestic Violence Act, in order for the limited duty provided for in section 305 to apply, the officer's act of omission or commission must occur while the officer is rendering ''emergency assistance or otherwise enforcing the act.'' In this case, there was no claim that the defendants were rendering ''emergency assistance'' and there was no evidence they did anything to otherwise "enforce the act" during the two months leading to the decedent's death. In other words, the defendants can't be liable for failing to do something about the threats precisely because they didn't do anything about it.

This case is in accord with the prevailing view on this subject. If the Court were to hold to the contrary, it would create a generalized duty owed by all law enforcement agencies and personnel to anyone who has been abused by a family or household member. The opinion is called Lacey v. The Village of Palatine.

Wyeth v. Levine May Affect Medical Device Litigation Despite Reigel v. Medtronic

Posted by James P. Ellison in the FDA Law Blog (all links are from the original post): "Despite the Supreme Court’s 2008 ruling in Reigel v. Medtronic, in which the Court found express preemption for devices subject to premarket approval based on express statutory language, the judge in Minnesota overseeing multi-district device litigation granted the plaintiffs’ motion to amend their complaint to comply with the Court’s recent ruling in Wyeth v. Levine. The judge’s order is significant because just two months ago this same judge granted a motion to dismiss the claims in those device cases based on preemption. While it is not clear that the judge overseeing these cases believes that Wyeth affects Reigel and device preemption, the order provides tangible evidence that even if none of the pending bills (here and here) to undo device preemption (which seem to have been motivated by Wyeth) become law, Wyeth may nevertheless have implications for device litigation."

Top torts stories of the past week

Click here for a list of links to the most interesting stories of the week ending March 13, 2009. Thanks to TortsProf Blog for the information.

Thursday, March 12, 2009

Georgia tort reform is not getting much support

Tort reform is not going "as planned in Georgia." Earlier this year I reported on a press release from the Governor of Georgia proposing a number of tort reform provisions in an attempt to "make Georgia more friendly to business." See my comments on January 14, January 15 and February 12. It is now evident that the Governor's approach is not getting much support.
The bill that would have prohibited product liability suits against manufacturers of drugs or medical devices that have been certified by the U.S. Food and Drug Administration died in the Senate Economic Development Committee.
Yesterday, a second tort reform bill was approved by the Georgia Senate but it is a substantially "watered-down" version of the original. This version, passed unanimously by the Senate, removed a provision that required the plaintiff to pay the defendant's costs if the lawsuit was dismissed at the earliest possible stage in the case.
Also, in an unrelated story, Georgia's cap on damages in med mal cases was declared unconstitutional.
Thanks to Chris Robinette from TortsProf Blog for the information on the most recent bill.

Tort reform for nursing homes

For a second year in a row, nursing home owners in Tennessee are trying to get legislation enacted that would limit legal recourse for nursing home residents should they be harmed or killed. For information on last year's attempt go here. This year's bill would place an arbitrary cap on damages that victims could collect, which Tennessee's AARP and consumer groups vehemently oppose. For the full story, go here.

More on the case against BYOB club for injuries caused by intoxicated patron

Last December I reported on a decision by the Illinois Appellate Court holding that a commercial establishment could be liable for injuries caused by a patron who left the establishment under the influence of alcohol. Today, the Chicago Daily Law Bulletin reports that the establishment has filed a petition for leave to appeal at the Illinois Supreme Court. I have not read the petition itself, but according to the CDLB, the defendant is arguing that ''In this case, both the Circuit Court and the Appellate Court failed to recognize the need for judicial restraint when considering liability as a result of alcohol-related injuries'' and that ''[p]roviding the plaintiffs with a new remedy for alcohol-related injury when the legislature has declined to do so … puts the law into a state of flux because it forces courts to resolve these issues in a confusing and haphazard case-by-case manner.'' Why should the courts exercise restraint when considering alcohol related injuries? The defendant apparently is arguing that ''Because the plaintiffs' cases are undeniably alcohol-related, any cause of action . . . must emanate from the legislature or not at all.'' Why that would be so, I don't know. There is nothing unusual about courts recognizing possible liability for damages caused by conduct related to the use of alcohol. The defendant in this case seems to be arguing that the Legislature preempted the claims by enacting the Dram Shop Act, while at the same time arguing they are not covered by the Act because, in fact, they did not serve the alcohol in question in the case. You can't have it both ways. What makes this case so interesting to me is that it involves a commercial establishment that encourages its patrons to drink alcohol while not actually selling it to them. The facts and issue are also very much like those in a case of a social host. I hope the Supreme Court takes the case. I will be an interesting decision. Stay tuned.

The Medical Device Act

As I reported here, the day after the landmark Wyeth decision came down, a bill was introduced in Congress to legislatively reverse last year's Supreme Court decision in Riegel v. Medtronic, which held that state claims against medical device manufacturers are preempted. Here is a comment on whether the Act would be a good idea from The PopTort blog.

More comments on Wyeth v Levine

The comments on the decision by the Supreme Court in Wyeth v Levine defeating the preemption argument in cases of damages caused by inadequate warnings keep pouring in. Here are a couple of links: For a comment in favor of the decision go to Tort Deform Blog For comments and links against the decision go to Drug & Device Law Blog

Two cartoons

Plaintiff's lawyer dreams
"Don't fight the hypo!" ... that's something I often tell my students in class... Click here for daily law related cartoons.

NFL gets immunity

In the event that terrorists attacked a football stadium packed with fans some fall Sunday, the National Football League would be immune from suit. The Department of Homeland Security recently bestowed upon the NFL and other organizations full exemption under a law called the SAFETY Act (Support Anti-terrorism by Fostering Effective Technologies). The law, passed in 2002, was enacted in response to the lawsuits filed after 9/11. At the time, companies were afraid they would be sued if their security measures failed to stop a terrorist attack. Click here for the story, from the USA Today and here for a comment on the Wall Street Journal Law Blog.
Thanks to Tim Weiler for the information.

Tuesday, March 10, 2009

Supreme Court Turns Down New York City Case Against Gun Industry

Law.com reports today that the Supreme Court has turned away pleas by New York City and gun violence victims to hold the firearms industry responsible for selling guns that could end up in illegal markets. Federal appeals courts in New York and Washington stayed the claims after Congress passed a law in 2005 giving the gun industry broad immunity against such lawsuits. The city had argued that a state nuisance law makes it a crime to knowingly or recklessly create a condition endangering the safety or health of a considerable number of people. But the appeals court said New York's law does not qualify as an exception to federal law. It agreed with U.S. District Judge Jack B. Weinstein that the Protection of Lawful Commerce in Arms Act, signed by President George W. Bush in 2005, is constitutional. The cases are City of New York v. Beretta and Lawson v. Beretta. For a comment on this case, go here.

First Circuit issues unprecedented opinion on defamation

A little less than a month ago, the Federal Court of Appeals for the First Circuit, interpreting Massachusets law, issued an unprecedented opinion on the topic of defamation. The Court held that a plaintiff could support an action for libel even though the statement upon which the claim was based was actually true. This is unprecedented because it goes against one of the most basic principles of defamation law. By definition a libelous statement is one that is false. It is the fact that it is false that damages someone's reputation. It is true that a few jurisdictions do recognize a cause of action when a truthful depiction of someone creates a false impression about him or her but those cases are about the impression created by photographs. The typical claim in those cases involves a photograph that shows the plaintiff with a known public figure they do not support or during an activity for a cause they do not support. The photograph is true but the plaintiff alleges it suggests that he or she supports the cause or personality in the photo when in fact they do not. This is not what was involved in this case. The recent case in the First Circuit, available here, involves an employee who was fired from his job for allegedly padding expense reports. An executive of his employer sent an e-mail to about 1,500 other employees informing them that the plaintiff had been fired for violating company policies. Even though the statements in the e-mail message were true, the plaintiff sued for defamation. The Court starts its anlysis saying that "since a given statement, even if libelous, must also be false to give rise to a cause of action, the defendant may assert the statement's truth as an absolute defense to a libel claim." This is clearly the generally accepted principle everywhere. Because the statement was in fact true, the plaintiff's complaint was based on the allegation that the statement, although true, "gave the impression" that he had committed a crime, which was false, and placed his character (his honesty) in question. Essentially, he was arguing that a true statement can be defamatory if it leads to a wrong impression regarding the plaintiff's character. The Court correctly rejects this argument finding there is just no support for it. However, the Court then finds that Massachusetts law recognizes a narrow exception to the general rule: "the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with "actual malice" in publishing the statement." This "actual malice" refers to the old common law concept of "ill will"or "evil motive" (as opposed to the actual malice concept developed by the Supreme Court in New York Times v. Sullivan and its progeny), which has been declared irrelevant in cases that involve public figures or topics of public interest. Although this old concept has been pretty much abandoned, I understand if the Court is saying that this case is purely a common law-private person-no public interest type case where we are not going to apply a constitutional standard. If that's the case, applying this standard would only require an evaluation of the defendant's motive in making the statement. If its intent was to cause an injury by disclosing the true statement, then the plaintiff would have a cause of action. The problem is that this type of claim has nothing to do with defamation. It is based on the intent of the speaker and on an evaluation of the motives behind it. The Court goes through the analysis and concluds that, given the evidence, a jury could conclude that the defendant "singled out [the plaintiff] in order to humiliate him." And on that basis, remands the case for the jury to decide the case. The problem is this: What the Court has described is intentional conduct with intent to humilate and that is an example of intentional infliction of emotional distress. That is the proper claim here; not defamation.

Monday, March 9, 2009

Should preemption analysis be different in cases of prescription drugs and medical devices?

That's an interesting question, discussed in a long post at the Drug and Device Law Blog. As they explain, in Riegel v. Medtronic, the Supreme Court found there is preemption for medical devices approved through the premarket approval process. In Wyeth v Levine, it found there is often no preemption for prescription drugs. One basis for distinguishing between drugs and devices is that The Medical Device Amendments of 1976 contain an express preemption clause while the Food, Drug and Cosmetic Act does not have a similar provision for drugs. But, as D&D Blog explains, that's a legal reason for making a distinction, not a policy reason. And Congress is now thinking about eliminating the legal reason. Click here for the full discussion.

Tort reform report from various states

The TortsProf Blog listed these interesting developments in its weekly review: Hawaii's House Judiciary Committee approved a bill on Tuesday that could lead to caps on noneconomic damages in med mal claims against doctors in five specialties. (Honolulu Advertiser) Utah Senate gives initial passage to a bill raising the burden of proof in emergency room med mal cases to "clear and convincing" evidence. (Salt Lake Tribune) Arizona has attempted to pass this legislation several times. Prof. Chris Robinette has commented on this in this post. Oklahoma House passes a tort reform bill that would, among other things, cap noneconomic damages at $300,000. The bill moves on to the Senate. The Governor has not yet weighed in. (NewsOK) Physicians rally in Albany for decreased med mal insurance premiums and the ability to collectively bargain with insurers. (Times Union)

Top torts stories of the past week

Click here for a list of links to the most interesting stories of the week ending March 6, 2009. Thanks to TortsProf Blog for the information.

9/11 Mediator Wraps Up Work

Three years after she began to mediate wrongful-death and personal-injury lawsuits that arose out of the Sept. 11 terror attacks, it is impossible to tell whether the litigants received better recoveries than people who went through a compensation fund created by Congress, attorney Sheila L. Birnbaum said in a final report to Southern District of New York Judge Alvin Hellerstein. Birnbaum's report details efforts that have left all but three of 95 cases settled for a total of $500 million. Full story here.

The Medical Device Safety Act of 2009

Last week, just after the decision in Wyeth v. Levine was announced, a new bill was introduced in the House and Senate in an attempt to reverse legislatively the Supreme Court's pro-preemption decision in Riegel v. Medtronic. The bill is called The Medical Device Safety Act of 2009. Here's a link (originally posted by Drug & Device Law blog) which reports on the introduction of the MDSA in both the House and the Senate. The TortsProf blog has more information and links here.

Is this the year for FDA regulation of tobacco products?

The FDA Law Blog says it seems likely that the answer will be “yes” in a long comment published today, available here. It discusses The Family Smoking Prevention and Tobacco Control Act"" (H.R. 1256) which is on a fast-track under the new administration. The bill passed the House Energy and Commerce Committee by an overwhelming margin on March 4, 2008, two days after it was introduced. It is now headed to the full House of Representatives. The bill would give FDA the authority to regulate tobacco products, including cigarettes and smokeless tobacco.

Thursday, March 5, 2009

Effect of Wyeth v Levine on state legislation

About a month ago I posted about a bill being discussed in Georgia to provide immunity to drug manufacturers whose products have been approved by the FDA. Today, the PopTort posted a comment on the effect of the decision in Wyeth on it and on a statute in Michigan which does provide similar immunity.

Comments on preemption

A little more than a year ago, in Riegel v. Medtronic, a majority of the Supreme Court held that a state claims in medical device cases were preempted by FDA regulation. In Wyeth v. Levine, a majority of the Supreme Court held that state tort suits should be preserved because they help uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly. This has led many to ask why the Supreme Court would allow suits over drug labels, but not over medical devices. For comments on this question go here and here (a long comment by the folks of Drug and Device Law).

Med mal tort reform in Utah

The PopTort reports today about a piece of legislation being proposed by Utah State Senator Peter Knudson (R-Brigham) which would make it considerably more difficult for patients injured in hospital emergency rooms to be compensated. For the full story go here.

More Press Coverage of Wyeth v Levine

Some of the press coverage of Wyeth v. Levine: New York Times AmLaw Washington Post Wall Street Journal here, here, and here the Philadelphia Inquirer USA Today LA Times Nat'l Law Journal Thanks to Drug & Device Law blog for this list

Wednesday, March 4, 2009

Comments on Wyeth v Levine

As expected, everyone is posting about the Supreme Court's decision in Wyeth v Levine. Some blogs are celebrating the "victory" others are lamenting the "defeat." I read the majority opinion on the train coming home today. It is suprisingly short and very straighforward. I will post some comments soon after I read all the separate opinions. Meanwhile, here is a list of some links. These were all posted this afternoon. In no particular order: Prof. Jonathan Turley Public Citizen Public Citizen's press release Products liability Prof Blog Drug and Device Law FDA Law Blog The Pop Tort Blog Chicago Daily Law Bulletin Law.com

Do professors have a Tarasoff type duty to act?

Prof. Jonathan Turley reports today on an incident that reminded me of our discussion of the duty created by Tarasoff v. Regents of the Univ of California. Remember that in that case the Court recognizes a duty to warn an unsuspecting possible victim of a patient who has expressed some level of desire to commit violence. Part of the question not answered by the Court's analysis is when does the duty start. Professor Turley's report today tells the story of a University Professor who called the police in response to a student's report on the right to carry guns. Here is a portion of the story: "Professor Paula Anderson has a curious approach to controversial topics. Some of us encourage students to taken controversial positions to generate passionate class debate. Professor Anderson, according to critics, calls the police. She is accused of calling police on her student John Wahlberg at the Central Connecticut States University after he and two fellow students argued in favor of allowing students and teachers to carry weapons on campus, citing the tragedy at Virginia Tech. Other faculty members have defended her and suggested that there is more to this story. The students were asked to discuss a “relevant issue in the media,” and the students argued that the death [toll] would have been lower had teachers and students been allowed to carry weapons. After his presentation in October, Wahlberg, 23, was pulled into the police station where officers demanded to know where he kept his weapons. They are all lawfully registered and locked in a safe. Anderson is quoted in claiming that it was a matter of safety that led to her dropping a dime on her own student:“It is also my responsibility as a teacher to protect the well-being of our students, and the campus community at all times."” Professor Turley's comment is available here. For the full story, click here.

Supreme Court decides Wyeth v Levine

The most anticipated Supreme Court opinion related to tort law this term is now in! I have not had a chance to read it, but according to reports it concludes that state claims against pharmacutical companies for inadequate warnings are NOT pre-empted by federal law. This is a huge (and unexpected) victory for consumers and a huge loss for the pharmaceutical industry. According to reports the vote was 6 to 3, which is also a surprise. The text of the opinion is available here. I will post more comments in the next few days.