Monday, January 30, 2012

Lawsuit filed for damages related to the Concordia Cruise ship accident

Yesterday, I posted a link to a podcast on the possible liability of the Costa Cruise line for the recent cruise ship accident in which the Costa Concordia ship ran aground and capsized off the coast of Italy (here).  Today, there is news that a class action lawsuit has been filed against Costa Cruise line and its parent company, Carnival Cruise lines, on behalf of passengers who were on the Costa Concordia.  At least six passengers have filed lawsuits against the companies in Miami, but a clause in the tickets bought by the 4,200 passengers stipulates that any such lawsuits must be filed in the venue of the cruise line company’s choice. In this case, Italy.  For more information go here.

Former inmate who was left in solitary confinement wins $22 million; Another gets $25 for wrongful conviction

A New Mexico man held in solitary confinement in a county prison for nearly two years without ever being prosecuted has won a $22 million jury award for violation of his constitutional rights.  Go here for the story.

Meanwhile, an Illinois man who spent 16 years in prison for a crime he did not commit was awarded $25 million.   Go here for more on that story.

New complaint filed on behalf of 72 plaintiffs alleging damages caused by Plavix

Seventy-two plaintiffs from across the country have filed a product liability lawsuit against Bristol-Myers Squibb and Sanofi Aventis, alleging that the manufacturers of the popular blood thinner Plavix lied about the drug’s safety and effectiveness.  According to allegations raised in the complaint, Plavix side effects caused the plaintiffs to suffer injuries, economic losses and medical costs because the companies provided inadequate warnings and falsely claimed that the popular blood thinner was more effective, and safer, than aspirin. Go here for more information.

Sunday, January 29, 2012

Podcast on possible liability in the Costa Concordia Cruise Ship accident

Here is a link to a podcast on possible liability issues in the Costa Concordia Cruise Ship accident.

UPDATE:  Mon. 1-30-12:  a lawsuit has now been filed...  Go here for more information.

Wednesday, January 25, 2012

NuvaRing Lawsuits Over Blood Clot Side Effects Continue to Mount

More than 900 cases have been filed by women who allege that they suffered a stroke, pulmonary embolism, deep vein thrombosis or other blood clot injury as a result of NuvaRing side effects.  NuvaRing is a form of birth control that releases a combination of etonogestrel and ethinyl estradiol through a ring that is inserted into the vagina once a month.  Go here for more information.

Tuesday, January 24, 2012

Pfizer Moves to Consolidate Zoloft Birth Defect Litigation into an MDL

AboutLawsuits is reporting today that Pfizer has filed a motion to consolidate all federal Zoloft birth defect lawsuits, which have been filed in courts throughout the United States, asking that they be centralized before one judge for pretrial litigation as part of a multidistrict litigation, or MDL. Go here for more information.

Federal Court denies motion to dismiss in case against Johnson and Johnson for warnings regarding Motrin - UPDATED

Pharmalot is reporting today that a federal judged ruled Johnson and Johnson will have to defend against lawsuits charging it failed to properly warn that its over-the-counter Motrin pain reliever can cause Stevens-Johnson Syndrome and a deadlier form of the disease known as Toxic Epidermal Necrolysis.  For more information go to here.  For a copy of the court's ruling go here.

UPDATE:  1/24/12:  more on the store at

Saturday, January 21, 2012

A bizarre re-telling of the Palsgraf question: whether a plaintiff can sustain a claim against estate of man who was killed by moving train for injuries suffered when his flying dead body hit her

Last month, the appellate Court of Illinois decided an interesting case that allows us to review the famous Palsgraf v Long Island Railroad decision but that involves much more gruesome facts.  The case is called Zokhrabov v Park and, just like Palsgraf, it involves a train accident.

In Zokhrabov, a young man was trying to cross over railroad tracks when a fast moving train was heading towards him.  For whatever reason, the young man did not get out of the way quickly enough and the train hit him propelling his body into a pedestrian who was struck and injured by the flying body.  The pedestrian sued the deceased man’s estate and the lower court dismissed the claim.  On appeal, however, the decision was reversed and remanded.

One initial question is why would the plaintiff sue the victim of the train accident and not the train company itself.  The answer is simple: because it will be easier for the plaintiff to show that the victim was negligent.  In fact, it appears that the train company was not negligent at all.  So the plaintiff sued the person who was negligent and whose negligence caused her an injury.

The question facing the court, however, is whether the scope of liability should extend to include her injury given the bizarre way in which the accident happened.  For some this is a question of the element of duty; others would call it an issue of proximate cause. 

Either way, when it comes down to it, the case is simple and the court reached the correct conclusion.  The important question is whether the injury is a foreseeable consequence of the risk created by the negligent conduct.  If it can be argued that it is, then the plaintiff has satisfied the element of the cause of action and the case survives the motion to dismiss.

The step by step analysis should be something like this: 

1.  Was the defendant negligent?  You can make a reasonable argument that he was.  For that reason, you have to conclude that reasonable people can disagree and the jury should be the one to decide the issue.

2.  If the conduct was negligent, by definition, it created an unreasonable risk of harm to others.  Given that, then we ask whether the risk of getting hit by a flying body is a reasonably foreseeable consequence of the risk created by the defendant's negligent conduct of putting himself in a position to get hit by a fast moving train.  Again, at the very least, reasonable people can disagree and, therefore, the question should go to the jury. 

The opinion is available here.

For more analysis on the case (by Prof. Jonathan Turley) go here.  For other comments on the case go to Abnormal Use and the Chicago Personal Injury Blog.

Quiz about Medical Malpractice

So you think you know about what is going on in the world of medical malpractice these days?  Take a quiz (here) and see how you do.  The read this report to review the facts...

The truth about medical malpractice litigation

The Center for Justice and Democracy has published a new version of its Medical Malpractice Fact Sheet "The Truth about Medical Malpractice Litigation" in which it addresses the most common arguments advanced by proponents of tort reform and those who seek to limit the ability of plaintiffs to recover for their injuries.  It is available here.

Wednesday, January 11, 2012

More on the question of certificates of merit

Yesterday I blogged about a recent article on certificates of merit in medical malpractice cases.  I stated that I thought requiring certificates of merit is a bad policy designed to make it more difficult for valid claims to be litigated.  The Maryland Medical Malpractice Attorney blog has posted a reply to my position here.

Tuesday, January 10, 2012

Loss of consortium claims for same sex domestic partner?

In a short opinion released last month the Connecticut Appellate Court considered whether to recognize a claim for loss of consortium for a same sex domestic partner.The case is called Mueller v. Tepler and it is available here.

As the court explains in the opinion, its decision is based on a previous case called Gurliacci v. Mayer, 218 Conn. 531, 564, 590 A.2d 914 (1991), in which the state's Supreme Court held that a claim for loss of consortium cannot be maintained when the plaintiff was not married to the victim at the time the underlying tort occurred. In that case, the plaintiff was engaged to the victim and they were living together. Yet, the court held that a formal marriage relation "forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance."  Thus, it concluded that there is simply no right to a cause of action for loss of consortium if the injury occurred prior to the marriage of the parties.’’

In Mueller v Tepler, the plaintiff argued that the court should not follow this precedent because she would have been married to the victim at the time of the underlying tort had it not been for what the court referred to as "the unconstitutional deprivation of her right to do so."

Having set the stage so nicely for an interesting, and definitely valid, question, the court then avoided it by stating that "even if we were to assume that a complaint that includes such an allegation states a legally sufficient claim for loss of consortium, the plaintiff did not plead this fact in the third amended complaint. Although the plaintiff pleaded that she was in a stable relationship with Mueller, lived with her for many years, supported her financially and entered into a civil union with her one and one-half years after the tortious conduct had occurred, these allegations, even when construed in the light most favorable to the plaintiff, do not allege that the couple would have formalized their relationship before the defendants’ negligent acts ceased on March 5, 2004."

That's weak.  So the plaintiff did not use the magic words "If state law had allowed it at the time, I would have married my partner before her injury" but so what?  The important issue was whether marriage should be the deciding factor to determine whether the plaintiff has in fact suffered the injury we know as "loss of consortium."

I admit I don't know what the law is on this issue in other jurisdictions, but now I am curious to find out.

Thanks to the Legal Profession blog for the tip.

New study on certificates of merit in med mal cases concludes the obvious

Long time readers of this blog know that I have argued many times that the real purpose of most tort reform initiatives is not to eliminate frivolous lawsuits (since we already have multiple mechanisms in place for that) but legitimate ones.  This is why I have long advocated against the imposition of a requirement for a certificate of merit in medical malpractice cases.  This is also why many states have invalidated such requirements.

The issue is now back in the news because, a new Associated Press review of medical malpractice case in Connecticut has found that, although the law requiring a certificate of merit was supposedly aimed at preventing frivolous lawsuits and reducing high malpractice insurance rates, it has resulted in the dismissal of many legitimate lawsuits. 

This, obviously, is not news to anyone who has been paying serious attention to the topic, but you can read more about it here and here.

Thursday, January 5, 2012

New law in New Jersey mandates use of ski helmets

Some of the states where skiing is popular have adopted legislation codifying the notion of assumption of the risk specifically as it relates to skiing to attempt to minimize the possible liability of ski resorts.  Now comes news that New Jersey has become the first state in the nation to require all minors to wear helmets while downhill skiing or snowboarding, and while on ski tows, lifts and tramways.  Violations of the law will result in penalties imposed on the minors' parents, guardians and persons in a supervisory position.  Injured (the FindLaw Tort law blog) and the NJ Herald have more details here and here.

Tuesday, January 3, 2012

More end of the year lists, continued

A few days ago, I posted a link to Drug and Device Law Blog's Top Ten "Best" cases of the year and promised that I would let you know if Litigation and Trial blog posted a reply.  And, as expected, here is the reply.