Sunday, August 31, 2014

Lawsuit claims $40 million in damages for injuries caused by police in Ferguson, Missouri

CNN is reporting that last Thursday five individuals arrested recently in Ferguson, Missouri, filed a lawsuit against Ferguson Police Chief Thomas Jackson, St. Louis County Police Chief Jon Belmar, Ferguson officer Justin Cosma, several unnamed officers and the city and county governments asking compensation for injuries caused by the police during the recent events in Ferguson.  The complaint includes claims for intentional infliction of emotional distress, negligence, assault and battery.  The CNN article has more details.

Thursday, August 28, 2014

Panel on brand-name and generics manufacturers liability

Yesterday I posted a comment on a recent decision from the Alabama Supreme Court on the possible liability of a brand-name drug manufacturer for injuries related to defective warnings provided by a generics drug manufacturer.   Looking for some information on the topic I found the video that appears below of a panel at a conference on the subject.  I just found it a few minutes ago and I have not had a chance to watch it, so I can't comment on it.  (One note:  when the panelists (or the literature) uses the term "innovator" they are referring to the "name-brand manufacturer.")  Here is the video:

Wednesday, August 27, 2014

Alabama Supreme Court reaffirms holding that name brand manufacturers can be held liable for defective warnings in generic drugs they did not manufacuture

Last Friday, the Alabama Supreme Court denied a rehearing in the case of Wyeth v. Weeks thus letting stand the holding that name-brand drug manufacturers can be held liable for defective warnings in generic drugs that they did not manufacture or distribute. This is a good result that should be followed by other courts.  As of now, this view is in the minority, but with some luck the tide may begin to turn OR the FDA rules that apply to generic manufacturers will be changed.

As you probably know, current FDA rules prevent generic drug manufacturers from altering, updating or changing the content of warnings in the labels of the drugs they manufacture.  That content is determined by the name brand manufacturers based on FDA guidelines.  If name brand manufacturers issue defective warnings, there is nothing the generic manufacturers can do to fix them.  For this reason, they have enjoyed immunity from lawsuits.  In a recent example, the Court of Appeals for the Third Circuit affirmed a trial court’s order dismissing a claim against a number of generic drug manufacturers in a case related to the drug Fosamax.

So, let's assume that a consumer is injured because of a defective warning in a generic drug that originates in the warning provided by the name brand manufacturer.  Because the consumer probably can't recover from the manufacturer of the generic drug (because of preemption), some plaintiffs have attempted to sue the brand name manufacturers.  After all it was their warning that caused the problem to begin with.  But in response to that, name brand manufacturers have tried to avoid liability arguing they should not be liable for injuries caused by drugs they did not manufacture or distribute and that the claims are preempted by federal law.

These arguments may be a valid if the claim is based on either manufacturing or design defects but not necessarily when it relates to warnings.  Otherwise, the consumer has no recourse at all.  They can't sue the generics because they don't have control over the warning, and they can't recover from the brand-name companies because they did not produce the product.  Tough luck.

Given this state of affairs, there are two possible approaches.  One is to recognize a cause of action against the brand name manufacturers.  That's the approach taken by the court in Alabama and by a few other courts.  One key to this approach is that the claim against the manufacturer of the generic product does not have to be based on products liability principles at all.  (If it is, the plaintiffs may have a hard time arguing against the preemption argument.)  Instead, the claim can be based on simple negligent misrepresentation.  There is a short article in this month's issue of Trial magazine which explains the difference.  The article is called Brand-name Liability for Inadequate Drug Labels.

The other alternative is to change the FDA rules and allow (and presumably encourage) generic manufacturers to provide their own content when it comes to labels and warnings.

As you know, there has a been quite a debate recently about whether the FDA should change the rules (see here, here, here, and here), and not surprisingly generic drug manufacturers have opposed the proposal. You would think that manufacturers interested in making sure their products are safe would welcome the new rule. However, because the current system works to immunize generics manufacturers, a change that would work to make the products safer would also open the door to possible liability. Thus, as you would expect from those who are more interested in profit than safety, the manufacturers hired a consulting firm in an attempt to show that changes in the rules would be bad for consumers.  Consumer agencies, on the other hand, have campaigned for the adoption of new rules (also here).

The decision by the Alabama Supreme Court has also generated some debate.  Here is an article arguing that the court reached the correct decision.  Here is an article criticizing it.

As I said above, I am with those who think the decision is correct.  It makes logical sense and it is based on good public policy.  The article arguing the decision is wrong, makes several mistakes.  First, it is not true that products liability has been based on privity of contract.  That has not been the case for ages.   The whole notion of products liability is based on the idea that consumers should be allowed to recover for injuries from defendants with whom they have had no relationship.  Also, the fact that the injury may happen years after the manufacturer places the product in the market is very common and if it is a problem it is the plaintiff's problem since he or she has the burden to prove causation.  Neither argument points to anything wrong or unfair about recognizing a cause of action.

And, of course, no article regarding possible liability of drug manufacturers is complete without a reminder that possible liability means no more life saving drugs, dogs and cats living together and the end of the world.  Do you really think that one of the most profitable industries in the US and world wide will stop manufacturing or reduce its ability to make more profits?  I don't.  Making a few million less a year to assure our safety while staying profitable is not that much to ask.

UPDATE 5/14/15:  The Alabama legislature has sent a bill to the governor that would overturn the result in Wyeth v. Weeks.  The bill passed the Senate 32-9 and the House 86-14.  Legal Newsline has the story.

GM ignition switch compensation program receives more than 300 claims, including 107 death-related

For months, I have been following developments related to the recalls, defects, lawsuits, settlement claims and other issues affecting General Motors Co.  Go here and scroll down to see stories between March 2014 and now.  Here is the latest:  GM ignition switch compensation program receives more than 300 claims, including 107 death-related.  Go here for details.

Thanks to Torts Today for the link.

Monday, August 25, 2014

Chicago and two California counties sue alleging pharmaceutical companies are responsible for epidemic of addiction

Back in April I reported on a new study that concluded the obvious:  direct to consumer advertising of prescription drugs results in unneeded prescriptions.  Now comes news that the city of Chicago and two counties in California have filed a lawsuit alleging that the aggressive marketing by five pharmaceutical companies has resulted in an epidemic of addiction to painkillers.  The New York Times has the story here.

Sunday, August 24, 2014

Propaganda against increasing cap in California is now available

Back in July of last year I commented on an initiative in California to raise the cap on pain and suffering damages which has not been increased since it was adopted in 1975.  Go here for my original comment on the issue.  More recently, in March of this year, it was announced that supporters of the initiative had enough signatures to put the measure on the ballot in November.  The measure is now known as Proposition 46.

As I said in my original comment, "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."  Given this alignment of forces, it is also not surprising to know now that those opposing the measure have raised over $36 million dollars, while those supporting it have raised only $2.3 million.

And, again not surprisingly - at least to anyone paying attention to these issues - those opposing the measure have not been able to find any new arguments other than those that have been proven false or inaccurate many times over by reports and studies of all sorts. You would think that, with all their resources, they could come up with something better, or new, or true.

This recently introduced anti prop 46 ad is illustrative.  It blames lawyers for prop 46 - because everyone hates lawyers, right? - and then repeats, without any support for it, the proven false claims that medical malpractice claims increase health care costs for everyone.  It is ironic that the slogan of the campaign is "check the facts" when there are none (in the ad or the website it asks you to visit.)

If you click on the medical malpractice or the tort reform tabs on the right side and scroll down you will find many stories with links to reports, studies and other information that debunks the unsupported allegations the ad and the website try to pass as facts.

Thanks to the TortsProf blog for the link to the ad.

Thursday, August 21, 2014

Motorcycle accident

The other day in class I discussed a hypo based on a motorcycle accident.  Coincidentally, yesterday I saw this video of an actual accident (at about the 20 second mark).  In my hypo, the victim lost a leg.  In this video, well, watch for yourself.  The rider shows incredible balance and agility!  I wonder if he is a gymnast or a surfer...  One thing I know he is is extremely lucky!

Sunday, August 17, 2014

Court reopens case against GM even though plaintiffs had agreed to settlement

Last July I reported on an attempt to re open a case against GM based on an allegation that the plaintiffs would not have settled had they known that the GM witness lied during discovery and that the company covered it up.  As I said back then, Courts are usually reluctant to reopen lawsuits once they are settled but in this case the available documents helped the plaintiff's argument.  And last week, the court did authorize reopening the case.  Go to for more details.

Friday, August 8, 2014

Movies with pivotal lessons for lawyers

As many of you know, I keep a list of recommended movies for lawyers and law students.  It does not includes all the law related movies out there; only ones I have seen and would recommend.   Now for those of you interested in movies, here is a link to an article in the ABA listing twelve movie scenes that offer important lessons for lawyers.  You can click on each movie title for a short description of the relevant scene and the lesson the authors think it helps teach.

Sunday, August 3, 2014

Lawsuit filed against GM claims for 29 deaths and hundreds of injuries is reporting here that General Motors faces a new lawsuit filed on behalf of the families of 29 people who died in accidents allegedly caused by ignition switch defects, as well as 629 people who allege they suffered serious personal injury when the airbags in certain vehicles failed to open in a crash. The complaint was filed in the U.S. District Court for the Southern District of New York on July 29, seeking damages on behalf of individuals who are not eligible for a GM victim’s compensation fund, which begins taking applications today.  Go here for the full story.