Allergan was ordered by a federal court jury in Virginia to pay $212 million to a 67-year-old man who claimed he developed permanent brain damage after being injected with Botox to treat cramps and tremors in his hand in 2007. The plaintiff was awarded $12 million in compensatory damages and $200 million in punitive damages, after convincing the jury Allergan failed to warn that injections could trigger an autoimmune reaction leading to brain damage. Go here for the full story.
UPDATE (Monday May 2): AboutLawsuits has more on the story here.
UPDATE (5/13/11): Abnormal Use has more on the story here.
Saturday, May 14, 2011
Friday, May 13, 2011
This week's top stories
Tuesday, May 10, 2011
New lawsuit alleges medication resulted in murder/suicide
AboutLawsuits.com is reporting today that a product liability lawsuit filed against Pfizer alleges that side effects of Chantix, a medication designed to help people stop smoking, caused a Pennsylvania man to experience psychotic rage, kill his wife and then commit suicide in May 2009, leaving behind four minor children. Go here for the full story.
Monday, May 9, 2011
Record breaking verdict in asbestos exposure case
A Mississippi jury has awarded $322 million in damages for pain and suffering, future medical expenses and punitive damages to a former oil worker diagnosed with asbestosis, in what is believed to be the largest verdict for an asbestos suit in U.S. history.
According to the story in AboutLawsuits.com, one of the major issues during the trial was Brown’s literacy and whether the companies were responsible for workers who were unable to read understanding warning labels and signs. Brown was 16 when he began working in the oil fields and was illiterate. Go here for the full story.
According to the story in AboutLawsuits.com, one of the major issues during the trial was Brown’s literacy and whether the companies were responsible for workers who were unable to read understanding warning labels and signs. Brown was 16 when he began working in the oil fields and was illiterate. Go here for the full story.
When should the statute of limitations begin to run on a legal malpractice claim?
The legal malpractice law review blog is reporting on two cases that illustrate two very different approaches to the issue of the application of a statute of limitation in a legal malpractice action.
In Laclette v. Galindo, 184 Cal. App. 4th 919 (2010), the court held that the continuous representation doctrine will toll the statute of limitations in a malpractice action for the period of time the attorney is listed as counsel of record-- even where no active representation is undertaken. (See here.)
Meanwhile, in Bennett v. Hill-Boren, P.C., 52 So. 3d 364 (Miss. 2011), the court held that the statute of limitations begins to run on the date the client reasonably should have known that the lawyer was negligent. (See here.)
In Laclette v. Galindo, 184 Cal. App. 4th 919 (2010), the court held that the continuous representation doctrine will toll the statute of limitations in a malpractice action for the period of time the attorney is listed as counsel of record-- even where no active representation is undertaken. (See here.)
Meanwhile, in Bennett v. Hill-Boren, P.C., 52 So. 3d 364 (Miss. 2011), the court held that the statute of limitations begins to run on the date the client reasonably should have known that the lawyer was negligent. (See here.)
Friday, May 6, 2011
New article on medical malpractice reform and how it will increase the deficit
In a new short article, Joanne Doroshow, of the Center for Justice and Democracy, argues that medical malpractice reform will likely increase the deficit. The article starts as follows:
"When people talk about medical malpractice "reform," they are usually not talking about reducing the epidemic of medical errors in hospitals or instituting proven measures to actually reduce injuries, deaths, claims and lawsuits. No, they're usually talking about making it more difficult for patients injured by medical negligence, including catastrophically-injured children, to be compensated.Read the full article here. Here is its conclusion:
Despite the enormous hardships on innocent patients caused by these measures, or the fact that they shift compensation burdens onto others, there is an argument circulating that these measures are worth enacting because they will reduce the deficit."
Well, no they won't. In fact, they will likely increase it.
"I have testified in Congress on this topic twice since January, and both times, I have tried to make clear that taking away the rights of the most seriously injured in our society has been and continues to be a failed public policy. This is the wrong way to respond to the important economic problems that face this country. Tort restrictions will add to the deficit and will reduce the financial incentive of institutions like hospitals and HMOs to operate safely, when our objectives should be deterring unsafe and substandard medical practices while safeguarding patients' rights. And effective insurance reforms are the only way to stop the insurance industry from abusing its enormous economic influence, which it uses to promote a legislative agenda that bilks taxpayers and severely hurts the American public."
The effects of medical negligence tort reform in Florida
Go here for a short comment on the effect of tort reform in Florida.
IL Supreme Court rules parents are not entitled to recovery in wrongful birth case for costs of taking care of child past age of majority
The Supreme Court of Illinois announced its decision in Clark v Children's Memorial Hospital today. This was the case in which the plaintiffs of a child born with birth defects that should have been detected before birth argued they had a right to recover for the costs of taking care of the child past the age of majority. I wrote about the lower court's decision here.
I have not had a chance to read the actual opinion (which is available here), so my comments are based on a summary provided by the Illinois State Bar (here).
In deciding that the parents should not be allowed to recover for extraordinary expenses associated with the genetic disorder past the age of majority, the court relied on the general common law rule that parents have no obligation to support their adult children. The court reasoned that if the parents voluntarily accepted the burden of supporting their child after he reaches the age of majority, their willingness to do so in the absence of a legal obligation was not caused by the defendants.
If we are going to recognize a cause of action for wrongful birth, as the Court does, then the result in Clark is bad. Having concluded that the defendant caused the need for the expenses the question should be how much are the expenses going to be. The child will need to meet those expenses for the rest of his life, not just until the age of majority. Who will take care of him after the age of majority?
One problem I am having is based on the fact that the child should have been the plaintiff here. If the child had been the plaintiff, he could recover for the expenses for life, but because the parents were the plaintiffs the recovery is limited to the age of 18. But I am not sure that the child could have been the plaintiff, because then the Court might have said that a child can't recover for wrongful life. I'll have to read the opinion to see if the Court makes this distinction.
Bottom line, there won't be enough money to take care of this severely disabled child past the age of 18.
The second issue in the case is just as interesting. It asks whether the parents should be allowed to recover for emotional distress due to the birth of the child. The lower courts analyzed the issue as if the claim had been argued as a bystander's claim, requiring that the plaintiffs be present within the "zone of danger." The Supreme Court, however, decided under the facts of the case this claim was not based on witnessing what happens to someone else, but essentially a type of pain and suffering associated with what happened to the palintiffs themselves. Conceptually, this makes sense to me, but I will have to read the opinion itself to see how the court explains it to make sure the analysis is convincing.
I have not had a chance to read the actual opinion (which is available here), so my comments are based on a summary provided by the Illinois State Bar (here).
In deciding that the parents should not be allowed to recover for extraordinary expenses associated with the genetic disorder past the age of majority, the court relied on the general common law rule that parents have no obligation to support their adult children. The court reasoned that if the parents voluntarily accepted the burden of supporting their child after he reaches the age of majority, their willingness to do so in the absence of a legal obligation was not caused by the defendants.
If we are going to recognize a cause of action for wrongful birth, as the Court does, then the result in Clark is bad. Having concluded that the defendant caused the need for the expenses the question should be how much are the expenses going to be. The child will need to meet those expenses for the rest of his life, not just until the age of majority. Who will take care of him after the age of majority?
One problem I am having is based on the fact that the child should have been the plaintiff here. If the child had been the plaintiff, he could recover for the expenses for life, but because the parents were the plaintiffs the recovery is limited to the age of 18. But I am not sure that the child could have been the plaintiff, because then the Court might have said that a child can't recover for wrongful life. I'll have to read the opinion to see if the Court makes this distinction.
Bottom line, there won't be enough money to take care of this severely disabled child past the age of 18.
The second issue in the case is just as interesting. It asks whether the parents should be allowed to recover for emotional distress due to the birth of the child. The lower courts analyzed the issue as if the claim had been argued as a bystander's claim, requiring that the plaintiffs be present within the "zone of danger." The Supreme Court, however, decided under the facts of the case this claim was not based on witnessing what happens to someone else, but essentially a type of pain and suffering associated with what happened to the palintiffs themselves. Conceptually, this makes sense to me, but I will have to read the opinion itself to see how the court explains it to make sure the analysis is convincing.
No compensation for deaths in clinical trials in India
An investigation by India’s health ministry has found that drugmakers running clinical trials in the country have not compensated survivors of most volunteers who died during their studies. Of 671 deaths that were reported last year, there is evidence that compensation was given in just three cases. Go here for the full story.
This week's top stories
It is Friday, which means it is time for our links to top stories of the week. I apologize for not updating the blog as much this week... I have been having computer problems at home and I have been busy preparing my final exams, which I am sure my students will appreciate...
In any case, here is the link for the Abnormal Use blog's "Friday links." Note that I posted a comment to their post there. Also, go here for the Friday Link Roundup at the Boston Personal Injury blog - and note that they actually mention me!
Finally, go here and scroll down for my own selection of top news stories.
In any case, here is the link for the Abnormal Use blog's "Friday links." Note that I posted a comment to their post there. Also, go here for the Friday Link Roundup at the Boston Personal Injury blog - and note that they actually mention me!
Finally, go here and scroll down for my own selection of top news stories.
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