Saturday, August 28, 2010

Nevada med mal cap on damages under attack is reporting that the family of a Nevada woman who died due to a medical misdiagnosis is preparing to challenge the application of the state's $350,000 cap on non-economic damages in medical malpractice lawsuits. The plaintiffs in the case (the husband and six children of the victim) are not challenging the imposition of the cap itself but an interpretation of how it should be applied. They argue that the cap should apply "per plaintiff". The defendants argue the cap applies to all the claims collectively, meaning the plaintiffs would only get $350,000 to divide among them. In other words, according to the plaintiffs, each plaintiff should be allowed to get up to $350,000; according to the defendants, each plaintiff should not get more than $50,000. It's a big difference. According to the story, if the court does not agree with the plaintiffs' interpretation, they may then challenge the constitutionality of the entire malpractice damage cap. Go here for the full story. I am not sure why the plaintiffs' have decided to structure their argument this way. It seems to me it would make more sense to do it in reverse order. First challenge the whole system and then, in the alternative, if the system is validated then argue for a favorable application of it. As an aside, remember that the Supreme Court of Illinois recently invalidated the Illinois cap, so there is recent (persuasive) precedent in support of the plaintiffs' position. For my posts on the Illinois case and its consequences go here, here, here, here and here.

Thursday, August 26, 2010

More pediatric clinical trials going overseas

Back in January 2009 I reported that the Court of Appeals for the Second Circuit revived a claim filed under the Alien Torts Statute by Nigerian citizens against Pfizer claiming the company subjected their children to medical experimentation without their consent during a 1996 meningitis outbreak. The opinion is available here. The Supreme Court then rejected an appeal by Pfizer. Interestingly, today Pharmalot is reporting that "[a] new study in Pediatrics finds more pediatric trials are going overseas - 65 percent conducted under the pediatric exclusivity provision, which offers drugmakers six months of patent extension for running safety and efficacy studies - used overseas sites. More than one-third, or 38 percent, enrolled patients in a developing country, including one-third of trials testing infectious disease, cardiovascular and allergy and immunology meds. And 11 per cent only used sites outside the US (here is the abstract)." The study suggests there are potential benefits to the globalization of pediatric research, such as reducing the cost and time line for drug development, fostering global clinical innovation, and improving access to therapies and the health of children worldwide, but they also raise a number of troubling concerns such as whether research matches the needs of local populations, whether the meds would become available to children in these countries after the studies end and the issues related to the need for informed consent - which is the issue is the cases mentioned above. For more information go to Pharmalot.

Illinois eliminates access to doctors' records

Here is a link to a recent Chicago Tribune article that discusses the battle between patients' rights advocates and the medical lobby surrounding the online posting of physicians' detailed histories, including malpractice records. At one point the state maintained a website where it posted such information. Patients could see whether a given doctor was convicted of a crime, fired by a medical institution or held liable for malpractice within a five-year window. However, for obvious reasons, the Illinois State Medical Society lobbied hard to stop the state from making the information available. It won the battle and the website no longer works. For more information go here.

Tuesday, August 24, 2010

Interesting choice of laws case results in dismissal of claim

On August 11, the Court of Appeals for the 7th Circuit announced its decision in a case called Robinson v McNeil Consumer (available here), which involves an interesting combination of issues related to choice of laws and the defense of contributory negligence. In this case, the plaintiff used Motrin while living in Virginia. As a result, she suffered a severe reaction which caused her serious injuries. After she moved to Illinois, she filed a lawsuit in Illinois state court but the case was then removed to federal court. Before trial, the district court ruled that Virginia law governed the substantive issues in the case. Because Virginia law rejects strict liability as a basis for a product-liability suit, the plaintiff had to prove negligence. Also, because Virginia is one of only a handful of states that still recognize contributory negligence as a complete defense, in order to recover the plaintiff had to be complete free of fault. After a six-day trial, the jury found that the defendant had been negligent and found that the plaintiff's damages were $3.5 million. But the jury also found that the plaintiff had been contributorily negligent. Therefore, because contributory negligence is a complete defense to negligence under Virginia law, the district court entered judgment for the defendant. On appeal, the court of appeals affirmed holding that Virginia law applied because the plaintiff used the drug in Virginia and because she had symptoms of her disease before she left Virginia. The court explained that "[i]f you suffer permanent brain damage in a motorcycle accident in Virginia and later move to Illinois, your suffering and treatment will continue and your condition may deteriorate. But to make the continuation or exacerbation of an injury a basis for applying Illinois tort law to your case would open vistas of forum shopping." Having decided the issue, the court then speculated that even if Illinois law had been applied, the plaintiff would not have succeeded on her claim because there was sufficient evidence that the plaintiff's contributory negligence exceeded the defendant's negligence which would have defeated her claim under Illinois law. Thanks to Prof. Tim O'Neill for the tip.

Pfizer asks court to reconsider ruling allowing cause of action to proceed is reporting that "[i]In the wake of the Pennsylvania Superior Court's recognition of a new pharmaceutical liability cause of action, drugmaker Pfizer is asking the appeals court to reconsider or hold a new en banc argument on its ruling that plaintiffs can sue pharmaceutical companies for the allegedly negligent design of their products. The panel of Judges Cheryl Lynn Allen, Correale F. Stevens and Susan Peikes Gantman ruled Aug. 6 that a negligent design defect claim regarding pharmaceutical drugs is distinct from a strict liability design defect claim and can be recognized in Pennsylvania. Gantman concurred in the result only." Pfizer argues, however, that "[a]llowing jurors or judges to second-guess the 'reasonableness' of a drug company's conduct in designing an FDA-approved drug is just as contrary to the notion of FDA-deference as would be allowing a jury or judge to second-guess the design itself, something which the Pennsylvania courts have clearly precluded." For the full story to go

Settelement reached in a few cases of claims of loss of smell due to use of Zicam

Matrixx Initiatives has agreed to settle 18 relatively small class action lawsuits filed by a group of plaintiffs who alleged that the company misrepresented the safety of their nasal sprays and gels, which federal regulators have indicated may cause people to lose their sense of smell. The company continues to face hundreds of Zicam injury lawsuits filed on behalf of consumers who have actually suffered loss of smell after using the cold remedy. Go to for the full story.

US Ct of Appeals reinstates case vs Wyeth; rejects preemption defense

A federal appeals court in Ohio has partially reinstated a lawsuit over the Redux diet pill after deciding that FDA approval did not preempt state claims that Wyeth was negligent in marketing the drug. (The drug was withdrawn in 1997 over links to serious heart and lung ailments.) The US Court of Appeals for the Sixth Circuit reversed dismissal of negligence over Wyeth’s actions prior to the 1996 approval of Redux, as well the dismissal of punitive damages (read the ruling here). For more on the story go to Pharmalot.

Monday, August 23, 2010

Safety mechanism for power tools

How many products liability cases have you read claiming damages because of an alleged lack of safety mechanism in power tools? Here is a comment about a $1.5 million jury verdict against saw manufacturer Ryobi for failing to equip its table saws with some form of flesh detection technology, such as that offered in SawStop-brand saws. Here is a video demonstrating that technology.

Thanks to the Boston Personal Injury Blog for the information and video.

Wednesday, August 18, 2010

California modifies statute of limitation for malpractice claims vs criminal defense lawyers

The California legislature, in what is believed to be the first instance of its kind in the nation, has enacted a law specifically addressed to the statute of limitations for actions by wrongfully-convicted persons against their attorneys. When proof of innocence is an element of the claim, the new law sets the time limit at two years from the date of post-conviction exoneration. Go to the Ethical Quandary blog for more information.

South Carolina rejects consumer expectations test in product defect cases

In an opinion filed on Monday, the South Carolina Supreme Court adopted the risk-utility test for design defect cases, rejecting use of a consumer expectations test. Under the risk-utility test, the court held that the plaintiff was required to present evidence of a reasonable alternative design that would have prevented the product from being unreasonably dangerous. What this means is that South Carolina has now become one of the few states to have adopted the views of the Restatement third on this issue. Thanks to the TortsProf blog for the information and link.

Tuesday, August 10, 2010

Medical malpractice news and comments

The Wall Street Journal's Health blog has published a report on a new study, carried out by the nonpartisan Society of Actuaries, that estimates the medical costs of medical errors at $19.5 billion annually in the United States. The report is available here. Thanks to the Boston Personal Injury Lawyer Blog for the information. For another comment on the report go to the PopTort blog, which also has a separate comment on other aspects of the med mal reform debate here. UPDATE (8/13/10): has a story on the report here.

FDA to decide whether to pull Meridia off the market is reporting today that an FDA advisory panel will look at the side effects of Meridia, Abbott Laboratories’ weight loss drug, and recommend whether the drug should be pulled from the market. Go here for more on the story.

SC Ct of Appeals rejects pre-impact fear claim

All states recognize the right of a person's estate to recover some claims under "survival statutes." These statutes typically hold that some claims survive the death of the victim and can be claimed by the estate. And, again, typically, the claims are for the damages suffered by the decedent between the time of the accident and the time of death. There is some debate, however, as to whether courts should recognize claims for the value of the fear suffered by the victim in the moments just prior to his or her death in cases where death happens at the time of the accident. I have no problem believing that there is no question that the victim suffers emotional distress at realizing they are just about to die; but courts have debated whether that injury is one for which the law should recognize a remedy, at least in cases where that emotion lasts only for a few seconds or minutes. The blog Abnormal Use reported a couple of days ago on the most recent decision on the subject. In a short, but interesting post (available here), it reports that the South Carolina Court of Appeals has held that personal representatives of a victim cannot recover damages for the last few seconds of life when their decedent knew for a fact that they would die. The case is called Rutland v. South Carolina Dep't of Transp., (S.C. App. Aug. 4, 2010). I hope the case is appealed to the state's Supreme Court. This is not a common issue and it will be interesting to know what the state Supreme Court finally decides.

More settlement news

Following up on the story from a few days ago, Pharmalot is reporting that AstraZeneca is moving closer to resolving the large number of lawsuits filed in the US over claims that the risks of its Seroquel antipsychotic were not properly disclosed. In the latest disclosure, AstraZeneca has agreed to pay about $198 million to settle 17,500, or roughly two-thirds of the outstanding lawsuits. Go here for the full story. also has more on the story here.

Friday, August 6, 2010

$10.5 million verdict reversed

A $10.5 million verdict awarded in an Accutane lawsuit over inflammatory bowel disease has been reversed by a New Jersey appeals court, which ruled that Roche was wrongly prohibited from introducing evidence to the jury about the number of individuals who have used the popular acne medication over the years. For more on the story go to, Drug and Device Law blog, and Pharmalot.

Settlement notes

According to a report this week by Bloomberg News, AstraZeneca has agreed to pay around $55 million in Seroquel settlements so far as part of court ordered mediation, and the drug maker is attempting to settle cases with an average payout of about $10,000 each. Story here. GlaxoSmithKline has indicated that most of the zinc poisoning lawsuits over their Super Poligrip denture cream are being settled with consumers. Story here. Volkswagen, Audi Owners to Share in $69 Million Settlement of Design-Defect Suit. Story here.

NJ Court holds gym waiver is express assumption of the risk

Law students familiar with the Prosser textbook will remember the case it uses to illustrate the defense of express assumption of the risk involves a waiver of liability signed by a member of a gym. It is not unusual for courts to validate these waivers which provide immunity to the gym. The NJ Supreme Court has added another decision on the topic. It ruled today that the former Powerhouse Gym in Brick Township was not liable for injury after a member injured herself on a faulty bicycle because she had signed a waiver of liability. Go here for the full story.
Not all cases have held the same way though. Here is a note on an older case that held a waiver was contrary to public policy.

For a short critical comment on the validity of these type of waivers go here.

Thursday, August 5, 2010

New law in Connecticut requires mediation in med mal cases

A new law in Connecticut became effective July 1 which calls for judges in the judicial district where a med-mal case is filed to refer the matter to a 120-day period of mediation or to another form of alternative dispute resolution. Reportedly, so far the apparent consensus is that the new law may take smaller cases off the litigation track, but won't resolve big-ticket cases that require the opinions of experts and extensive discovery. Go here for the full story.