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.
Thursday, August 6, 2015
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.
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.
Sunday, July 26, 2015
Fiat Chrysler Hit With Record $105 Million Fine For Safety Defects
Federal regulators are fining Fiat Chrysler $105 million for failing to acknowledge and address safety defects in a timely fashion.
The civil penalty — the largest ever imposed by the National Highway Traffic Safety Administration — will be accompanied by three years of "unprecedented" federal oversight, the agency says. Go here for more details.
Court upholds constitutionality of Florida statute that authorizes defendants' lawyers in medical malpractice cases to communicate directly with the plaintiffs' doctors without having to inform the plaintiffs or their lawyers
As reported in the TortsProf blog,
In 2013, the Florida legislature passed a med mal reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications: In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present. In October of 2014, the Eleventh Circuit held that the reform did not violate HIPAA. Now the 1st District Court of Appeal has upheld the constitutionality of the reform from challenges that it violates the right to privacy and separation of powers. CBS Miami has the story.
Please help a friend of mine with her research
My colleague Prof. Cynthia Bond is working on a article and she needs your help. Here is her request:
I am working on an article this summer on uses of popular culture in the law school classroom. I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).
To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area. If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:Thanks in advance for your time and have a wonderful rest of summer!Cynthia BondThe John Marshall Law SchoolChicago, IL
Thursday, July 9, 2015
Florida Intermediate Appellate Court Rules Med Mal Cap Unconstitutional
The TortsProf Blog is reporting that "[r]elying on the Florida Supreme Court's ruling that a cap on emotional distress damages in wrongful death cases is unconstitutional, an intermediate appellate court (the Fourth District Court of Appeal) ruled the state's medical malpractice cap on non-economic damages violates the equal protection clause of the Florida Constitution."
Tuesday, July 7, 2015
Follow up on story re vaccines
Just to follow up on my posts regarding possible liability on parents who fail to vaccinate children, here are a few update on related issues.
On June 25, the California State Assembly passed SB 277, a bill mandating that children in day care or school be vaccinated. The bill eliminates the personal-belief and religious exemptions, leaving intact only the medical exemption. See here, here, here and here.
Five days later, the Governor signed the bill into law. See here and here.
On June 25, the California State Assembly passed SB 277, a bill mandating that children in day care or school be vaccinated. The bill eliminates the personal-belief and religious exemptions, leaving intact only the medical exemption. See here, here, here and here.
Five days later, the Governor signed the bill into law. See here and here.
NY Court of Appeals reaffirms rule that immunizes dog owners for injuries caused by their negligence in handling their dogs
Eric Turkewitz, of The New York Personal Injury Law Blog, has a very interesting post on a recent decision by the NY Court of Appeals (the highest court in the state) on a topic I have written about in the past - the possible liability of a dog owner.
The facts of the case are relatively simple. The defendant allowed his dog to run around in Central Park, and later called it to come back. The dog bolted across the road exactly as commanded but unfortunately into the path of a bicyclist who suffered an injury as a result. The plaintiff sued the dog owner for negligence. Simple enough: the owner was negligent in either allowing the dog to run unleashed or in the way he called it back without taking precautions, and caused an injury as a result.
Prima facie case, right? Not so in New York, where courts, for some reason, do not recognize causes of action for negligence in cases of injuries caused by pets, although they do in cases of injuries caused by other animals.
Instead of recognizing how illogical the current state of affairs is, however, the court reaffirmed its position and decided to continue to adhere to a rule that essentially provides immunity to dog owners who cause injury with their negligent handling of their animals.
The case is Doerr v. Goldsmith and it is available here. In his post, Turkewitz briefly comments on the concurring opinion and one of the dissenting opinions and I agree with him entirely. The concurring opinion's reasoning is unpersuasive and the dissenting opinions are much more reasonable, logical and consistent with basic principles of tort law. As Chief Judge Lippman, in dissent, points out, the position taken by the court, "serve[s] only to immunize defendant from the consequences of her own negligent actions, for no reason other than that a dog happened to be involved in the accident."
Also, as pointed out by Judge Fahey, who also dissented, "We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation."
I agree.
The facts of the case are relatively simple. The defendant allowed his dog to run around in Central Park, and later called it to come back. The dog bolted across the road exactly as commanded but unfortunately into the path of a bicyclist who suffered an injury as a result. The plaintiff sued the dog owner for negligence. Simple enough: the owner was negligent in either allowing the dog to run unleashed or in the way he called it back without taking precautions, and caused an injury as a result.
Prima facie case, right? Not so in New York, where courts, for some reason, do not recognize causes of action for negligence in cases of injuries caused by pets, although they do in cases of injuries caused by other animals.
Instead of recognizing how illogical the current state of affairs is, however, the court reaffirmed its position and decided to continue to adhere to a rule that essentially provides immunity to dog owners who cause injury with their negligent handling of their animals.
The case is Doerr v. Goldsmith and it is available here. In his post, Turkewitz briefly comments on the concurring opinion and one of the dissenting opinions and I agree with him entirely. The concurring opinion's reasoning is unpersuasive and the dissenting opinions are much more reasonable, logical and consistent with basic principles of tort law. As Chief Judge Lippman, in dissent, points out, the position taken by the court, "serve[s] only to immunize defendant from the consequences of her own negligent actions, for no reason other than that a dog happened to be involved in the accident."
Also, as pointed out by Judge Fahey, who also dissented, "We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation."
I agree.
Monday, June 8, 2015
FDA panel recommends approval of controversial drug FDA has rejected twice already
Almost exactly five years ago I reported on a German pharmaceutical company's attempt to market a drug claiming it helps treat a disorder related to female sexual desire while others argued that the pharmaceutical company were trying to take advantage of women to sell them something they did not need (and potentially
endanger their health) in pursuit of billion dollar profits. The FDA eventually rejected the proposal after a study showed the drug failed to meet
agreed-upon criteria to establish its effectiveness. Go here for my report, which includes the trailers of a documentary on the controversial drug.
After the failed attempt to introduce the drug in the American market, the German pharmaceutical company dropped the drug. However, Sprout Pharmaceuticals picked it up and again submitted it for approval in 2013. The FDA nixed it, again.
Yet, just a few days ago, an FDA advisory panel voted to recommend approval of the drug. The FDA does not have to follow the advise of the panel but it usually does.
It will be interesting to see if the FDA does approve the drug this time around, since none of the reports I have seen mentions that there are different studies supporting a different conclusion than the ones available when the drug was rejected in the past. If approved, I am sure the controversy discussed in the documentary mentioned in my earlier comment will be revived. And when the drug is shown to cause injuries, it will inevitably result in litigation. (Yes, I said "when" rather than "if" on purpose. As has been discussed elsewhere, and reprinted in Smithsonian magazine "the drug also comes with side effects like sudden drops in blood pressure, sleepiness and fainting spells, it's unclear whether the benefits outweigh risks.")
For more information on the controversy, go here. For more on the approval process, NPR has a story here. For more on the drug itself, Smithsonian has a story here.
UPDATE 6/13/15: The New York Times has published a short editorial on this subject here. Among other things it concludes that "the panel’s recommendation was laced with so many caveats that it seems clear that this particular drug — flibanserin — is only marginally effective and carries some risk of serious adverse effects."
After the failed attempt to introduce the drug in the American market, the German pharmaceutical company dropped the drug. However, Sprout Pharmaceuticals picked it up and again submitted it for approval in 2013. The FDA nixed it, again.
Yet, just a few days ago, an FDA advisory panel voted to recommend approval of the drug. The FDA does not have to follow the advise of the panel but it usually does.
It will be interesting to see if the FDA does approve the drug this time around, since none of the reports I have seen mentions that there are different studies supporting a different conclusion than the ones available when the drug was rejected in the past. If approved, I am sure the controversy discussed in the documentary mentioned in my earlier comment will be revived. And when the drug is shown to cause injuries, it will inevitably result in litigation. (Yes, I said "when" rather than "if" on purpose. As has been discussed elsewhere, and reprinted in Smithsonian magazine "the drug also comes with side effects like sudden drops in blood pressure, sleepiness and fainting spells, it's unclear whether the benefits outweigh risks.")
For more information on the controversy, go here. For more on the approval process, NPR has a story here. For more on the drug itself, Smithsonian has a story here.
UPDATE 6/13/15: The New York Times has published a short editorial on this subject here. Among other things it concludes that "the panel’s recommendation was laced with so many caveats that it seems clear that this particular drug — flibanserin — is only marginally effective and carries some risk of serious adverse effects."
Possible liability of parents for denying medical care to child due to religious reasons, and issues related to vaccines, ... again
I have posted a number of comments on the possibility of imposing liability on parents when they cause an
injury to a child when refusing to provide medical care because of religious beliefs. See here. I have also posted on the relationship of this issue and the debates on vaccines. See here.
Here is an update: The California state Senate just overruled a long-standing law that permitted parents with religious and philosophical reservations to send their children to public and private schools without their shots.
Slate has a recent article on the issue called "Faith Healing Kills Children." You can read it here.
Here is an update: The California state Senate just overruled a long-standing law that permitted parents with religious and philosophical reservations to send their children to public and private schools without their shots.
Slate has a recent article on the issue called "Faith Healing Kills Children." You can read it here.
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