Contingency fees might be coming to the UK

Tort reformers in the US often suggest that we should do away with the use of contingency fees and adopt the "loser pays" system typically used in England. This is so because without contingency fees many, if not most, victims of accidents would not be able to find representation and would be unable to recover compensation for their injuries. However, the attack on the validity of the contingency fee system may now be substantially weakened by the fact a recent report prepared at the request of the English Judiciary has concluded that contingency fees should be allowed in the UK. In what one commentator called "the most controversial of all his recommendations," Lord Justice Jackson's Final Report proposes that lawyers be allowed contingency fees, acknowledging that the "arguments in favour of contingency fees ... outweigh the arguments against." Go here for the full story by Law.com. Go here for a copy of the report itself. Go here for links to the preliminary drafts of the report.

Should soldiers be allowed to sue private companies for injuries suffered during military service?

Last year, I posted a number of comments and updates on the Feres Doctrine which provides immunity to the government for injuries suffered while in the military. (Go to the "military/veterans" section of the blog for all the posts on this topic.) A new lawsuit filed recently will test the extent to which the doctrine should also protect private companies that work under contract with the government in war zones around the globe. The lawsuit was filed by a group of Indiana National Guardsman who allege that a mission to help clean up a water treatment plant in southern Iraq left them with fatal illnesses. The lawsuit argues that oil company KBR Inc. "disregarded and downplayed" the fact that the site at Qarmat Ali was coated with the hazardous chemical sodium dichromate and that, as a result, the soldiers suffered "unprotected, unknowing, direct exposure to one of the most potent carcinogens and mutagenic substances known to man." In products liability cases, courts have consistently held that government contractors are protected from liability if they can show that the product in question was manufactured following specific specifications requested by the government. It will be interesting to see if the court in this case follows this line of cases or creates a distinction. Go here for the full story.

Taser tort?

While visiting the Kankakee Junior High School, a police officer tasered 3 boys to demonstrate how a taser works. One of the kids had to be rushed to the hospital. For the full story, click here. For links to other stories on police officers using tasers for fun, go here, here, here and here.

Another end of the year top ten list

Here is a link to the top ten slip and fall headlines of the year, as compiled (and decided) by Chicago Bar-Tender blog. Here are three that caught my eye: 4. Woman sues Sears after she slips on vomit 5. Woman blames flower pot for slip and fall 9. Pro wrestler sues after he falls getting out of ring

Fifth Circuit Ct of Appeals rejects preemption argument in generic drug case

The U.S. Court of Appeals for the Firth Circuit has rejected the argument by a generic drug maker that federal law preempts a state-law failure-to-warn claim filed by a user of their generic Reglan. The appeal involved a product liability lawsuit against Actavis, Inc., which marketed a generic version of the brand name drug Reglan for treatment of gastrointestinal disorders. The plaintiff claimed that side effects of generic Reglan caused her to develop tardive dyskinesia, which is a neurological condition that causes involuntary movements of the lower face and extremities. A number of similar generic Reglan tardive dyskinesia lawsuitshave been filed in courts throughout the United States. Go here for the full story.

California governor announces tort reform campaign

California's unemployment topped 12 percent in November. So, in his annual State of the State address, republican governor Arnold Schwarzenegger announced a program "aimed at jumpstarting the Golden State's beleaguered economy" by creating or retaining 100,000 jobs. "Creating jobs and getting our economy back on track, protecting education, reforming our tax and pension systems and putting an end to our boom and bust budget cycle must all be priorities", he said. This makes sense were it not for the fact that he added that the top priority for his administration was, you guessed it, "tort reform." This is bad news for consumers and victims of malpractice in California, which already has a cap on non-economic damages in med-mal cases. Go here for the story. Thanks to the TortsProf Blog for the information and link.

Lawsuit filed for taser caused death

A few days ago, I reported that the 9th Circuit Court of Appeals recognized a cause of action for injuries caused by a police officer using a taser-gun. (See here and here.) With that decision now in the books and given the many reports we keep getting of inappropriate use of such weapons, I am sure we will begin to see more claims filed. Here is an example, reported by Aboutlawsuits.com: The family of a 33 year-old doctor who died after being shot with a stun gun by Nevada Highway Patrol officer has filed a lawsuit in the U.S. District Court in Las Vegas against Taser International, alleging that the stun gun maker failed to adequately warn about the potentially fatal effects of Tasers. Go here for the full story.

Is a warning that a drug may cause cancer in dogs adequate notice that it may cause cancer in humans?

The Drug Recall Lawyer Blog is reporting today on an interesting case in which the title of this post is the key issue. Go here for the full story.

In this case, the plaintiff was on hormone therapy, including a drug called Provera for ten years, through three different physicians. Part of this time, she took Provera (a progestin) in combination therapy with Premarin (an estrogen). The label for Provera, inserted in the Physicians’ Desk Reference by Pfizer, included the following: Beagle dogs treated with medroxyprogesterone acetate [the active ingredient in Provera] developed mammary nodules some of which were malignant. Although nodules occasionally appeared in control animals, they were intermittent in nature, whereas the nodules in the drug-treated animals were larger, more numerous, persistent, and there were some breast malignancies with metastases. Their significance with respect to humans has not been established.

Based on this warning, Pfizer tried to claim that Plaintiff was on notice that the drug could have caused her breast cancer more than two years before she filed the lawsuit (and, more than two years before a study showed the cancer risks with respect to humans).

The jury decided for the plaintiff, but the court entered a judgment notwithstanding the verdict. However, on December 31, the Superior Court of Pennsylvania (Pennsylvania’s first level appellate court) decided in Simon v. Wyeth Pharmaceuticals, et al. that the trial judge's grant of judgment notwithstanding the verdict was erroneous stating that "It defies logic, contrary to the trial court’s suggestion, that Appellant should have been aware of the risk of taking HRT through her own due diligence. It is entirely unreasonable that a lay person, completely lacking in medical training, would make the logical connection between HRT and breast cancer prior to the release of the WHI study, when three trained medical doctors believed that there was no such connection."

In the alternative, the trial court also justified the JNOV by concluding Pfizer’s failure to warn was not a proximate cause of the plaintiff's injury. This conclusion was apparently based on Pfizer's argument that a different warning would have made no difference. If that was the argument, by the way, the issue was not about proximate cause but about cause in fact. But in any case, the appellate court rejected the argument, noting that the doctors behaved much differently with their patients after the release of the study related to possible side effects in humans. One doctor noted in a deposition that, after the study, he “took every single patient off of the pill” There was sufficient evidence to support an inference that a different warning would have made a difference. There are about 1,000 other hormone therapy cases pending in courts around the country.

Parties agree to settle and dismiss case re immunity for prosecutorial misconduct pending before Supreme Court

As I had reported previously (here and here), last November the Supreme Court heard oral arguments in a case called Pottawattamie County, Iowa v. Harrington, which deals with whether prosecutors should be granted absolute immunity for their conduct in the process of investigating (rather than prosecuting) a case. I was eagerly awaiting the decision in this case since it deals with issues I cover in the two courses I teach (torts and professional responsibility). However, it has just been announced that there will be no opinion forthcoming because the parties have agreed to dismiss the case. The county has agreed to pay $12 million to the plaintiffs. The press release from the respondent’s counsel describing the settlement is available here. For a comment on a similar case out of the Second Circuit go here. Thanks to the Legal Ethics Forum for the information.

Another End of the Year Top Ten List

The Drug and Device Law Blog has posted its Top Ten Best Prescription Drug/Medical Device Decisions Of 2009. Obviously, given their pro-defendant bias, I am sure consumer protection groups will claim some of the the cases on the list are probably among the worst decisions of the year, but regardless of the point of view, the list includes some important cases.