Wednesday, December 30, 2009

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,, 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

Tuesday, December 22, 2009

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.

Monday, December 21, 2009

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.

Sunday, December 20, 2009

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.

Friday, December 18, 2009

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.

Thursday, December 17, 2009

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.

Still waiting after all these years

The Illinois Supreme Court announced a few decisions today, but what made the news about the announcement was not so much the cases that were decided but one that was not. According to the Chicago Daily Law Bulletin, there was some indication that the Court would announce its eagerly awaited decision in Abigaile Lebron v. Gottlieb Memorial Hospital which will decide whether the cap on non-economic damages in medical malpractice cases is constitutional. The case was argued before the state's high court in November 2008. We'll have to wait just a bit more for an answer to that very important question. Note that if decided before the end of the year, the case is guaranteed a spot in what will be my "top ten" list (see my previous post....)

End of the year "top ten lists"

Tis that time of the year... As we get closer to the end of the year, we will see "top ten lists" pop up all over ... "top ten cases of the year"... "top ten worst decisions"... "top ten things to keep an eye on for next year" ...and so on In fact, I promise that I will prepare my own top ten list at some point and publish it here, but for now I am going to link to the ones that start coming up here and there. Here is the first list of the year. It comes from the very informative pro-defendant blog "Drug and Device Law" and it is called Top Ten Worst Prescription Drug/Medical Device Decisions Of 2009. Given that this blog is clearly pro-manufacturer/pharmaceuticals etc, you can bet the same list could be considered a "best decisions" list by consumer advocate groups. Whichever way you look at it, it is a good list of important cases in the area of products liability.

Should we recognize a cause of action for loss of a pet?

This is a question we discuss in class in a couple of different contexts. Courts have traditionally held that animals are "chattels" and that there is no cause of action for emotional distress, loss of companionship and the like when they are injured by others. Usually, if a cause of action is recognized, the injuries are valued based on the "market value" of the animal.

I always ask my students how many of them own pets and ask them to talk about whether they would be affected if their pets were hurt by others (whether intentionally or negligentlly). Invariably a majority of them raise their hands to say they own or have owned pets, that they definitely feel affection for their pets and that injuries to pets do cause their owners sadness, grief and emotional distress.

 Now comes news that Vermont's Supreme Court is being asked to decide the issue. In this case, a couple let their dog wander into the defendant's yard and the defendant fatally shot it. The plaintiffs are asking the court to hold that a dog's owners can sue for emotional distress and loss of companionship. For more on the story go here.

Tuesday, December 15, 2009

Drugmaker has paid about $1 billion to settle cases and more cases are pending

Drugmaker GlaxoSmithKline has reportedly paid about $1 billion to settle Paxil lawsuits, including claims that their antidepressant caused birth defects, suicides, addiction and other problems. However, with another 600 Paxil birth defect lawsuits still pending, the company is likely to spend substantially more to satisfy jury verdicts or settle all Paxil cases. Go to for the full story.

Mother sues federal govt for letter that suggested her son had died in Iraq

The Minneapolis Star-Tribune has an interesting story about a Duluth woman who has sued the federal government for emotional distress because a letter that she wrote to her son stationed in Iraq was returned with the word "DECEASED" stamped on it. Fortunately, the mother was able to contact her son and quickly confirmed he was unharmed. For more on the story go here and here. There are a couple of interesting things about this story. First, it is not clear whose conduct is at issue. Obviously, someone stamped the letter with the word "deceased" by mistake, but it is not clear if it was an employee of the US Postal Service or someone in the military. Second, it is not clear to me whether the claim is barred by the exceptions to the Fedral Torts Claims Act. If the mistake was made by the USPS, the court will have to determine if the claim is barred by the exception that retains immunity for cases arguing injuries caused by the negligent handling of postal matters. If it was the military who made the mistake, the court may try to apply the infamous Feres doctrine which bars recovery for injuries incident to military service - although typically the doctrine applies to cases where the plaintiff is a member of the military.

Would an attack by a pet "Wolf-Dog" support a claim for strict liability?

It appears that the recent popularity over new hybrid dog breeds has spawned a more dangerous market for hybrid dog/wolf pups. Animal groups have expressed concerns about the growing hybrid population, warning that the creatures could present a danger to humans, particularly children, who experts say are seen as "prey" by the animals. In the US, where they have carried out a number of fatal attacks on children, hybrids are banned in some states and in others are only legal once they are five generations removed from wolves. In the United Kingdom the law only requires the dog to be three generations removed from the wild animal. For more on this topic go here and here.

Friday, December 11, 2009

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.

Thursday, December 10, 2009

Another take on the GAO report on the FDA

The GAO report on the FDA I mentioned here yesterday has generated some comment in other blogs. Here is a link to an article in Here is a link to a comment in the FDA Law Blog.

Wednesday, December 9, 2009

When cats attack?

Strict liability for this attack?

Debate on Iqbal continues

As the debate over whether Congress should act to overrule the pleading standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) continues in Congress, the University of Pennsylvania Law Review's online supplement PENNumbra is sponsoring an online debate between Professor Stephen Burbank (Univeristy of Pennsylvania) and the Jim Beck and Mark Hermann (better known as the guys who run the Drug and Device Law Blog). Prof. Burbank argues Congress should act while Beck/Hermann argue Congress should leave the cases alone. That debate will be published online in four parts. The first two installments are up already. Beck/Herrmann will post a "closing statement" on December 15 and Prof. Burbank will close the argument on December 22. Go here for the debate and check back in the coming weeks for the follow-ups.

New GAO report concludes what we knew already: the FDA is not efficient

A new Government Accountability Office report (available here) concludes that the FDA has not made enough changes in staff or procedures to better monitor drug safety, even though experts recommended several key changes back in 2006. For more on this story go here and here. UPDATE (12/10): another take on the report here.

Amendment to cap attorney's fees as part of health care reform defeated

The PopTort is reporting that an amendment to the Senate health care bill that would have imposed national wage caps on fees for attorneys' representing injured patients was defeated by a strong bi-partisan vote of 32-66. As the story in the PopTort states, "[c]apping . . . fees is a major agenda item of the so-called “tort reform” movement. The goal is to keep injured patients from getting decent legal assistance . . ." Go here for the full story.

Monday, December 7, 2009

Exam advice

Here is a link to a short article on exam advice from a few profs at the Wall Street Journal Law Blog.

Sunday, December 6, 2009

Taking a break from blogging

Loyal followers of this blog may have noticed fewer posts during the past couple of weeks. That's because I have been busy wrapping up the semester (preparing and teaching the last few classes, writing exams, dealing with faculty committee assignments...) and family preparations for the holidays! I am almost done preparing my exams and will have a few days to try to catch up with my blogging before I start grading exams. Once I start grading, though, I will again take a break from blogging for a little while. So, don't worry if you don't see much activity in the coming weeks. I will catch up eventually. Thank you for your support!

Friday, December 4, 2009

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.

Thursday, December 3, 2009

Possible cirminal charges vs Johnson & Johnson for off label marketing

More support for my prediction that 2010 will be the year of "off label marketing" issues... is reporting today that lawyers familiar with the investigation say a criminal charge against Johnson & Johnson for off-label marketing practices is under serious consideration. Go here for the full story.

Off label marketing

Just yesterday I ended my torts class this semester making the prediction that the next "hot" topic in Products Liability will be the issues raised by "off label marketing" of drugs. Now the FDA Law Blog is reporting that Allergan has filed a Complaint and a Motion for Preliminary Injunction in the United States District Court for the District of Columbia to prevent the FDA and the federal government from enforcing regulations on the dissemination of information about off-label uses of FDA-approved prescription drugs. The regulations would prohibit Allergan from sharing information with health care professionals on an off-label use of BOTOX. Go here for the full story. Interestingly, the FDA Law Blog also reports that the Washington Legal Foundation, a conservative think tank which for years dedicated a lot of efforts to oppose the use of IOLTA programs for funding legal services for the poor, has filed an amicus brief in support of Allergan, Inc.’s challenge to the FDA’s regulations. The lawsuit and the amicus brief raise important and very interesting issues. According to the FDA Law Blog story, "the WLF’s brief supplements Allergan’s complaint by expounding on two topics: (1) the importance of off-label uses to the practice of medicine and how overregulation of off-label speech is contrary to public health; and (2) the “three foundational First Amendment principles” necessary to resolve Allergan’s claims. With regard to the first topic, the brief stresses that manufacturers are in the best position to provide important off-label information because they – simply put – have the best access to and understanding of that information and the resources to disseminate it. In addition, the amici curiae argue that this information is critical to HCPs, because, among other reasons, off-label uses of prescription drugs often constitute the standard of care." Stay tuned. I am telling you. This is going to be THE topic in Products Liability in the coming year. I have blogged on this topic before here, here and here.

More lawsuits vs pharma for alleged injuries caused by birth control pills

About 300 other women have filed a similar Yaz lawsuit or Yasmin lawsuit against Bayer, alleging that the company failed to adequately research the birth control pills and warn about an increased risk of various health problems, such as strokes, heart attacks, blood clots in the legs (DVT), blood clots that travel to the lungs (pulmonary embolism), gallbladder disease and sudden death. Story here. I have blogged about this topic before here.

Wednesday, December 2, 2009

Ct of Appeals for the 7th Circuit decides suicide case

The Court of Appeals for the Seventh Circuit has issued its opinion in Johnson v. Wal-Mart Stores Inc.  In this case Wal-Mart sold a woman firearm ammunition without asking her to produce an Illinois Firearm Owners Identification Card. Selling ammunition to anyone who does not have such a card is illegal under Illinois law. The woman did not have such a card because she had been a mental patient within the previous five years. After she purchased the ammunition, she returned to her residence, loaded a revolver and shot herself in the chest. She died the next morning. Her husband filed a wrongful death lawsuit against Wal-Mart and Wal-Mart replied by filing a motion to dismiss arguing the plaintiff's allegations did not meet the element of proximate cause because the suicide was an unforeseeable event. The lower court granted the motion to dismiss and the plaintiff appealed. On appeal, the court finds that the decedent's conduct did operate as a superseding cause.

More on tort reform and health care reform

Here is a link to a cloumn from The Modesto Bee (November 29, 2009 edition) discussing how attorney’s fees may play a role in the national health care debate going on in Congress. For more on the story and some comments go here.

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

In last week's Houston Chronicle, Prof. Jennifer Bard (Texas Tech) had an interesting op-ed piece, "There's No Proof Tort Reform Reduces Health Costs." In this essay, Bard explains why tort reform is not a necessary part of health care reform. Also take a look at the comments below the article. Thanks to the TortsProf Blog for the information.