Comments on products liability case vs sperm bank

Yesterday I commented on a decision recognizing a products liability claim against a sperm bank (see here). Today Jonathan Turley comments on the case here.

More on the recent case re preemption of claims for damages caused by vaccine

Last Friday I posted a note on a recent preemption case out of the 3rd Circuit. Today Law.com published a short article on the case - available here - arguing the ruling could prompt the Supreme Court to take up yet another significant pre-emption case in the area of products liability. The case held that children allegedly injured by vaccines are barred from pursuing any design defect claims because Congress expressly prohibited such suits in an effort to guarantee immunity to manufacturers.

11th Circuit rules certain medical devices are not exempt from FDA pre market approval

The United States Court of Appeals for the Eleventh Circuit has issued its opinion in United States v. Endotec, Inc. The central issue on appeal was whether various ankle, knee, and jaw implants manufactured and distributed by Endotec qualified as “custom devices” exempt from the FDC Act's premarket approval requirements. In the district court, FDA had sought a permanent injunction against Endotec and its officers to preclude further manufacture and distribution of such devices without the necessary premarket approval. Siding largely with the company, the District Court held that Endotec’s ankle and jaw implants, but not its knee implants, were exempt “custom devices.” But a couple of days ago the Eleventh Circuit affirmed in part and reversed in part, concurring that the distributed jaw implant was a custom device, but not the knee or ankle implants. The full opinion is available here. The FDA Blog has the full story here.

Conference on the Third Restatement

Wake Forest Law School is currently conducting a conference on the Third Restatement of Torts. The TortsProf Blog is providing short summaries on the sessions and lots of links to articles and webcasts of the sessions. There is a lot of interesting stuff to look at and listen to there. Here are a few links: Duty in the Third Restatement: for a short written summary go here, for audio of the full session go here. Negligent infliction of emotional distress: short written summary, audio of full session. Causation in the Third Restatement: written summary, audio of full session Negligence in the Third Restatement: written summary, audio of full session Thanks to the TortsProf blog for the information and links.

Consumer Products Safety Commission chair wants out

The PopTort reports today that Nancy Nord, the current head of the Consumer Products Safety Commission (CPSC) wants out. She has been the center of much controversy and there are many who want her out, actually, including some members of Congress (see here and here), the New York Times editorial board and consumer groups. See the full story here.

Federal court interprets New York law to allow product liability case for sale of defective sperm

Law.com is reporting that a federal judge has ruled that a sperm bank may be sued under product liability laws for failing to detect that a sperm donor had a genetic defect.

A significant issue in the case was whether the court should apply Pennsylvania or New York law. For a case involving sperm, the differences between Pennsylvania and New York tort law are significant. While Pennsylvania bans products liability suits stemming from blood, blood products and human tissues (the Restatement approach), New York's statute only mentions blood and blood products.

The plaintiff argued that New York law should apply because New York's interest in regulating its corporations outweighed Pennsylvania's interest in providing redress for wrongs committed against one of its citizens. The defendant argued that Pennsylvania law should apply because the semen was sold in Pennsylvania and the injury took place in Pennsylvania.

The court held for the plaintiff saying that New York had a stronger interest in seeing its laws applied because most of the significant conduct took place in New York (the screening of the sperm donor and the formation of the contract).

On the other hand, the decision dismissed all claims brought by the mother finding that the statute of limitations had expired because genetic tests showed in 1998 that the sperm donor was the source of the Fragile X genetic defect in her daughter. The plaintiff urged the judge to apply the discovery rule and to toll the statute of limitations alleging fraudulent concealment by defendant. But the court found that the mother should never have relied on the defendant's doctors. The mother should have questioned the defendant's statements especially in light of the fact that the daughter had been diagnosed by an independent hospital. The case is called Donovan v. Idant Laboratories. For the full story go here.

Another case vs elementary school related to how the school handled "temper tantrum"

About a month ago I posted a comment about a case brought by the parents of child against a school for false imprisonment due to a "time out." See here. Today, the ABA Journal.com is reporting that a similar case has been filed in Florida. The report states that the mother of a 5-year-old handcuffed by police after other efforts failed to calm the girl down during a kindergarten temper tantrum has filed suit over the incident. The claim seeks damages from the County School Board and Elementary school for alleged negligence, malicious prosecution and a civil-rights violation. The complaint alleges that the child, now 8, was so traumatized by the handcuffing that she is still afraid of school and the police and will need long-term therapy. More on the story (and lots of comments) here.

Top torts stories

Tort Deform Blog has posted its version of the top stories of the last month here.

More on whether there is a duty to beneficiaries for failing to prepare a will in time

A few days ago I posted a comment on a new case on the issue of whether there is a duty to third parties for not acting quickly enough in the preparation of a will. See here. The most recent installment of the ABA/BNA Lawyers' Manual on Professional Conduct has an article on the case. It is available here, although I am not sure if the link will work if you don't have a subscription to BNA. If it doesn't, look for the article with this citation: 25 Law. Man. Prof. Conduct 161.

Comment on preemption, legislation proposal and the report on medical devices

Yesterday I reported on a new report on injuries caused by medical devices. Today, here is a link to a comment on it published in The Huffington Post. It states in part: "According to a report released yesterday by the Center for Justice and Democracy, a shocking 573 recall notices were issued between 1992 and 2002, covering more than two million implants which had already been sold to doctors--and in many cases implanted into patients. Every one of these recalled devices were approved by an FDA approval process which is wholly inadequate to the task of protecting American consumers without significant help from private lawsuits. The FDA can barely keep up with the volume of work it faces. In 2005 alone, the FDA approved nearly 3,200 applications to market a new device to physicians and patients. . . . Lacking sufficient resources to monitor thousands of medical devices on their own, the FDA relies on the industry itself to disclose potential problems in the devices it regulates. Needless to say, device manufacturers are not always forthcoming. . . . As unwilling as the industry is to disclose damning information about their products, there is a simple way to learn the secrets that medical device makers do not want doctors to know: lawsuits. When an injured patient--or their begrieved survivors--sues a medical device maker, they have a right to discover how the company's product is made, and to uncover evidence that it is defective. They can find information that was long kept secret from the FDA, and they can often provide this hidden information to consumers and the medical profession. If they win their case, they impose a financial consequence on the manufacturer--sending an important message to profit-driven companies: if you hide key facts from the public, you will pay for it. Shockingly, however, a recent Supreme Court decision declares that medical device makers have almost total lawsuit immunity--meaning that one of the most reliable means of dislodging information from secretive companies no longer exists. . . . Fortunately, there is a way to fix this problem. Congress is currently considering a bill called the Medical Device Safety Act, . . . Until this bill passes, the FDA's lackluster screening process is the only thing standing between the millions of Americans who rely on medical devices to save their lives . . ."