Monday, August 24, 2015

GM ignition switch defects tied to 124 deaths, 275 injuries

Attorney Kenneth Feinberg’s office has completed its review of all 4,000-plus compensation claims related to General Motors’ faulty ignition switches which prompted the recall of more than 2.6 million vehicles last year and the conclusion is that the defects have been linked to 124 deaths and 275 injuries.  Go here for the full story.

Thanks to Torts Today for the update.

Sunday, August 9, 2015

Tony Stewart Sued For Wrongful Death By Family Of Kevin Ward, Jr.

You may remember a race car accident last year in which a driver got out of his car and started walking on the racetrack yelling at the driver that hit him. That driver, Tony Stewart, then hit the first driver, Kevin Ward, who later died from his injuries. ESPN is now reporting that Kevin Ward's family has filed a wrongful death lawsuit against Tony Stewart.

It will be interesting to see how the court addresses the claim because it raises several issues.  First of all, drivers who engage in race car driving assume the inherent risks of the sport, one of which is death.  However, the plaintiffs will argue that the plaintiff does not assume the risk of having a car driven into him the way Stewart did in this instance.  In reply, Stewart will probably argue that Ward was contributorily negligent in walking on the race track as the race was ongoing.  Depending on the rule in the jurisdiction, this argument may be enough to win the case for the defendant.

According to the lawsuit, Stewart gunned the throttle of his car to kick the tail end out as he drove by Ward, unlike the other cars that had passed through that section.  “Stewart could have easily acted reasonably and with prudence to avoid striking Ward, just as all other drivers had done as they passed Ward during the yellow caution flag,” reads the lawsuit. “Stewart acted with disregard for Ward’s life and safety by driving his vehicle in a manner that would terrorize Ward ...”  In other words, the plaintiffs seem to be arguing that Stewart purposely tried to scare Ward.  If that is the case, I wonder if they also included a count for battery in the complaint.

Here is a video of the accident itself:

Thursday, August 6, 2015

GM Settlement Fund Offers $1 Million Each in 124 Ingition Switch Death Claims

Details here.

Jury finds for the defendant Kansas City Royals in the case for injury caused by mascot

Long time readers of this blog might remember the case filed against the Kansas City Royals seeking compensation for an injury caused by a hot dog thrown by the team's mascot into the crowd.  My first reports on the case are here and here (including links to comments on the claim and to the original complaint).  My most recent posts on it are here (with a video) and here.

Eventually, the case went to trial and the jury found for the defendant. However, the Missouri Court of Appeals reversed the judgment and reinstated the case against the Kansas City Royals. Then, back in June 2014, the Missouri Supreme Court ruled that being hit in the eye with a flying hot dog is not an inherent risks of watching a baseball game and that, therefore, the  trial judge wrongly asked the jury to consider the defense of assumption of the risk.

The case went back to trial and just recently the jury found for the defendant.  The Kansas City Star has the story here.

Illinois Court of Appeals decides case against drug manufacturer which could be the next big case to reach the Supreme Court on the issue of preemption

Readers of the blog will remember that I have been following the debate and the cases on preemption of claims against manufacturers of generic drugs based on inadequate warnings (most recently here and here.)  

In an interesting twist to the plot, now comes a decision of the Illinois Appellate Court involving a claim based on a design defect.  In this case, called Guvenoz v. Target Corp., 2015 IL App (1st) 133940 (March 27, 2015), the plaintiff Guvenoz alleged that her husband, Lewis Guvenoz, suffered severe brain damage and eventually died from a heart attack caused by prescribed dosages of propoxyphene, a generic version of a brand name drug known as Darvocet.  The plaintiff sued the manufacturer manufactured of the generic version taken by her husband.  Six months after the decedent's cardiac arrest resulted in anoxic encephalopathy, the Food and Drug Administration banned Darvocet as unreasonably dangerous. But Guvenoz argued the manufacturers knew about correlations between Darvocet and fatal heart arrhythmias, knew the medication wasn’t very effective and knew the risk of death and serious injury outweighed the drug’s benefits. 

Because the plaintiff argued that the drug was so dangerous and of so little benefit that it should not have been manufactured or sold (the essence of a design defect claim), the crucial question of law for the Illinois Appellate Court was whether Nicole Guvenoz’s state law claims were pre-empted by the Bartlett/Mensing line of cases which hold state claims for inadequate warnings against manufacturers of generic drugs are pre-empted by federal law (because federal law forces them to use the exact same warnings used by brand name manufacturers). 

Directly addressing this question, the court concluded that “the logic of Bartlett and Mensing does not apply to plaintiff’s claims, and their holdings do not pre-empt the state law claims in this case.”  According to the court, the facts in the case at bar are very different from the facts in both Bartlett and Mensing.  In the case at bar, plaintiff alleges that there was no group of patients for whom the drug’s benefits outweighed its risks. By contrast, in both Bartlett and Mensing, the drug was safe for the vast majority of patients taking it, and only a “very small number of patients” suffered an adverse and severe reaction.  In the case at bar, plaintiff alleged that the drug was simply unsafe and should not have been sold at all, and there was no warning which could have cured the problem.