Sunday, July 28, 2013

There is a chance California will vote on increasing the cap on pain and suffering damages

In 1975, California enacted a bill capping pain and suffering damages at $250,000.  That was a generous amount then, but it is one of the, if not the lowest of caps around the country today.  If it were to be adjusted for inflation, the $250,000 value of the cap in 1975, should be $1.1 million today.  For this reason, a new ballot initiative has been proposed to raise the limit of the cap.  If it gathers enough support, it could qualify for the November 2014 ballot.  Unless, the legislature finds a way to compromise and amends the bill before then.

Not surprisingly, the opposing sides of the debate are the predictable ones.  For increasing the limit of the cap are consumer advocates, victims' advocates, plaintiffs' lawyers, medical malpractice victims, among others.  Against it are large corporations, supporters of tort reform, the insurance industry, the medical establishment and organizations that defend them, etc.  Interestingly, those opposing the measure have not been able to find any new arguments other than those that have been proven false so many times.  You would think that, with all their resources, they could come up with something better, or new, or true.

My prediction is that the Legislature will eventually come up with an amendment that will raise the cap to somewhere around $500,000 which is a common amount in other states.

Those advocating for the ballot initiative should be prepared to negotiate for that compromise.  But the most important part of that negotiation has to be to make sure the new law includes a formula to continue to increase the amount periodically, either based on the rate of inflation or in some other way.  That way, once you determine what is a fair amount based on the current value of the dollar, you can make sure the value continues to be the same in the future.  Otherwise, down the road, the measure becomes unfair to victims and a windfall for tortfeasors. 

I don't favor creating caps on damages at all, but if you have to have a cap, increasing the amount and creating a formula to continue to increase it in the future is not a bad compromise.

Unfortunately, like I said, I can see the first part happening but past history suggests a measure to adjust the cap automatically is not likely to be adopted.  But you can always hope...

Here is a link to a recent article on the subject.

Thanks to the TortsProf blog for the link.

Sunday, July 14, 2013

Maryland decides to remain in the dark ages; retains contributory negligence

The Maryland Supreme Court has issued an opinion showing its lack of vision about tort law in the twenty first century.  Or the twentieth.  Maryland is one of only five jurisdictions that still adhere to the antiquated, inadequate, unfair and, for those reasons, almost universally rejected doctrine of contributory negligence.  Other than those handful of jurisdictions, every single other jurisdiction in the US has abandoned it in favor of some version of the much better approach based on comparative negligence.

Yet, in a case that gave the court the chance to make the change and join the modern world, the Court decided to keep its 19th century approach to torts.  Even though the court admitted that the court had the authority to change the principle because contributory negligence is a court created principle, it decided not to do it because the legislature had not done it.  Yes; that's it.  There is no other reasoning behind the decision.  The opinion comes down to the conclusion that "The General Assembly’s repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence."

In other words, the court decided not to exercise the authority it admitted it had because the Legislature has been unable to get its act together to do the right thing.  Given what we all know about legislative work, this view is shortsighted, to say the least.  

The case is called Coleman v. Soccer Association of Columbia.  The opinion is weak and unconvincing and, bottom line, takes the wrong position on the policy in question. Much better reading is the dissenting opinion by Judge Harrell:
Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.
As you would expect, the backward thinking thinktanks like the American Tort Reform Association are happy with the decision of the court (here).

Tuesday, July 9, 2013

My Professional Responsibility blog

Here is an important announcement for those of you that also follow my Professional Responsibility Blog.  Please note this applies to that blog only.  The Torts Blog was not affected. 

Something happened to the Professional Responsibility blog yesterday and the e-mail subscriptions function stopped working. I fixed the problem, but unfortunately, if you had an e-mail subscription and prefer to continue to get updates by e-mail, you will need to subscribe again. Please do so by going to the PR blog (click here) and entering your e-mail address in the box on the right hand side panel.  You will have to then follow the prompts to complete the process (typing some random letters and replying to a confirmation email).  It is a three step process but should not take you more than a minute to complete.  I just went through it myself.  I apologize for the inconvenience! If you have any questions or concerns please email me directly.

Monday, July 8, 2013

Judge orders NFL concussion case to mediation

The New York Times has a report here.
Thanks to Torts Today for the update.

Comment on dismissal of Fosamax case

A few days ago I posted that the court dismissed one of the many claims against pharmaceutical Merck for inadequate warnings related to its drug Fosamax on preemption grounds.  See here.  Today, Pharmalot has a comment on the case here.

Saturday, July 6, 2013

FDA proposes new rule to allow generic drug manufacturers to change warnings

According to FDA regulations, generic manufacturers must use the exact same warnings in their products as the makers of the brand name versions of the drugs.  For this reason, the US Supreme Court has decided that claims against generic drug manufacturers for inadequate warnings are preempted.

However, back in February I reported that the FDA was considering a regulatory change that would allow generic manufacturers to change the warnings on their products in appropriate circumstances - perhaps in part because, at least according to one study, that was the practice already. See here.

The FDA has, in fact, now made its proposal official.  Last Wednesday, the FDA proposed a new rule, which would allow generic drug manufacturers to update their labels with new warnings, even when the brand name is no longer on the market.  Pharmalot and AboutLawsuits have more on the story here and here.

Thursday, July 4, 2013

Two more comments on Mutual Pharmaceutical v Bartlett

I missed these links before when I posted on the Supreme Court's decision in Bartlett so I am posting it now separately.  Pharmalot has a comment here.  Reuters has a report here.

Here is an interesting point in the Reuters report:  Consumer watchdog group Public Citizen said the Supreme Court decision on Monday undermines patient safety at a time when about 80 percent of U.S. prescriptions are filled with generic medicines.  "Today's court decision provides a disincentive for generic makers of drugs to monitor safety of their products and to make sure that they have a surveillance system in place to detect adverse events that pose a threat to patients," Michael Carome, director of Public Citizen's Health Research Group, said in an interview.

Comment on the relationship between the interests of the insurance industry, medical services and costs in the United States

The PopTort has a short comment on a recent article in the New York Times here discussing the fact that the United States has one of the highest rates of both infant and maternal death among industrialized nations.

New study challenges med mal reformers' "talking point" that fear of lawsuits results in "defensive medicine" and higher costs

A study published earlier this month by the medical journal JAMA Internal Medicine, researchers working with Veterans Affairs hospitals indicate that doctors at the government-run medical centers, who are generally shielded from the effects of most malpractice lawsuits, request just as many unnecessary medical tests as their peers in the private sector, who are far more vulnerable to lawsuits.  For more on the story go to

Supreme Court decides Mutual Pharmaceutical v Bartlett, reaffirms protections for generic pharmaceutical manufacturers

For about a year and a half, I have been following the developments in Mutual Pharmaceutical v. Bartlett, the third case on preemption in the context of a claim for damages caused by a prescription drug.  (See my posts and links here, here, here, here, here, here, and here.  The difference in this case was that the claim was not based on the warning on the product but on a claim of defective design.

Last Monday, the Court finally decided the case and, in  a 5-4 decision, the majority saw the case as essentially a replay of last year’s decision in PLIVA, Inc. v. Mensing: All five of the Justices in the PLIVA majority held for the manufacturer here, and the four PLIVA dissenters would have held for the plaintiff.

For a copy of the opinion go here.  For a good summary of the ruling, go here. For more information, including links to the lower court opinion and the documents filed in the case, go here.

Federal Judge dismisses lawsuit against manufacturer of Fosamax on pre-emption grounds

In recent years, increasing evidence has linked the popular drug Fosamax (manufactured by Merck) to spontaneous breaks of the thigh bone after little or no trauma.  As lawsuits began to mount, more than 1,000 Fosamax femur fracture cases have been consolidated in the federal court system as part of a multidistrict litigation.  Many of those cases may now be threatened by a recent ruling by the federal judge presiding over the litigation granting summary judgement in favor of the defendant.

About Lawsuits is reporting (here) that the judge has ruled that one of the many claims that allege that Merck failed to adequately warn about the risk of sudden femur fractures is preempted by federal law because the FDA rejected a request to update the warning label.  

In his order, the judge (available here), the failure to warn claim is pre-empted by federal law because the FDA decided not to strengthen the Fosamax label in 2009, the year Glynn’s femur fractured. 

I am not sure, however, that this ruling is consistent with the US Supreme Court decision n Wyeth v. Levine, in which the Court held that a failure-to-warn claim related to a branded pharmaceutical was not preempted because the manufacturer was free to update the warning label at its discretion.

As I understand it, the state of the law is that if the manufacturer is not required to get FDA approval to update the label and can, therefore, decide to update the warning, then the claim would not be preempted.  If the manufacturer can't do that - if it needs to get FDA approval to update - then the claim would be preempted.  This was the holding in last year's PLIVA, Inc. v. Mensing (followedd last Monday in Mutual Pharmaceutical Co. v. Bartlett).

It is not clear to me that Merck was required to seek permission from the FDA in this case and, thus, that the clam must be preempted. 

What is different in this case is that regardless of whether Merck was required to seek permission from the FDA, it did ask the FDA and the FDA replied that there was not enough evidence to warrant a change in the warning.

So, the question for me is, what happens if a manufacturer decides it has enough evidence to change a warning and it wants to change the warning, but relies on the FDA's decision?  Should the court allow a claim against the manufacturer because it was not careful enough in reaching its own conclusions, or should it be excused from liability because it relied on the FDA?

Personally, I think that if the evidence shows the manufacturer had enough evidence to justify the change in the warning and that it had decided it should change it, the cause of action should be allowed. 

Wednesday, July 3, 2013

Insurance payments on motorcycle accidents up after changes to helmet law in Michigan

The Chicago Daily Law Bulletin is reporting (here) that the average medical claim from a motorcycle crash rose by more than one-fifth last year in Michigan after the state stopped requiring all riders to wear helmets, according to an insurance industry study.  According to the report, crash deaths are also on the rise

This should not be surprising.  The risk of injury is greater when people ride without helmets and, if there is an injury, it is likely to be worse. 

For more than 40 years, Michigan required all motorcycle riders to wear helmets. State legislators changed the law last year so that only riders younger than 21 must wear helmets.  The average insurance payment on a motorcycle injury claim was $5,410 in the two years before the law was changed and $7,257 after it was changed — an increase of 34 percent, the study by the Highway Loss Data Institute found. After adjusting for the age and type of motorcycle, rider age, gender, marital status, weather and other factors, the actual increase was about 22 percent relative to a group of four comparative states, Illinois, Indiana, Ohio and Wisconsin, the study found.