Products Liability Statute of Repose and its Exceptions Held to be Constituational

The Tennessee Court of Appeals recently upheld the constitutionality of both the ten-year statute of repose under the Tennessee Products Liability Act (“TPLA”) and the exceptions thereunder for asbestos and silicone gel breast implant claims. In Adams v. Air Liquide America, L.P., No. M2013-02607-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2014), plaintiff filed a products liability claim related to injuries from silica exposure in his employment. Plaintiff was diagnosed with cancer in 2010, filed the claim in 2011, and it was undisputed that 1991 was the very latest time at which plaintiff could have first used or come into contact with defendants’ products. Defendants filed a motion for summary judgment on the grounds that the action was time-barred by the ten-year statute of repose found in Tenn. Code Ann. § 29-28-103(a), and the trial court granted the motion.

On appeal, plaintiff asserted that the statute of repose violated the Equal Protection Clause of the US Constitution and Section 8 of the Tennessee Constitution because it carved out exceptions for asbestos and silicone gel breast implant related injuries, but not silica-related claims. Plaintiff asserted that the classes of claims for which there are exceptions were similarly situated to silica-related claims because both have long latency periods. According to plaintiff, there was no rational basis for distinguishing between these claims.

This constitutional challenge was examined under the rational basis standard, meaning that “if any state of facts can reasonably be conceived to justify the classification or if the reasonableness of the class is fairly debatable, the statute must be upheld.” Adams (citing Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978)). In affirming the trial court’s summary judgment decision, the Court noted that “the statute of repose and its exceptions have been upheld under similar equal protection challenges[,]” including other challenges related to injuries with long latency periods. The Court essentially just adopted the reasoning of the trial court, quoting its conclusions that

silica and asbestos claims are not similarly situated by injury or class, asbestos has been classified as a toxic substance, whereas silica has not, silica has no similarity to silicone gel breast implants, and if silica-related claims and asbestos-related claims were similarly situated, the Tennessee General Assembly had a rational basis to distinguish between the two…silicosis is by its nature an occupational disease, whereas asbestosis is not so limited given the fact that it historically has been found in homes, schools and the like, in addition to the workplace (internal quotations omitted).

This case is a reminder that the ten-year statute of repose for TPLA claims is strictly enforced in this state. Even for injuries that were not known about during that ten-year period, this statute can be fatal to claims against product manufacturers.

Tennessee Court Holds that Jury Need Not Be Instructed on Financial Effect of Fault Being Assessed Against a Non-Party That Had Previously Settled

Recently, the Tennessee Court of Appeals reviewed the case of Lake v. The Memphis Landsmen in its third trip to the court. A number of issues were raised in the appeal, but by far the most interesting one concerned the plaintiffs’ contention that the trial court erred in including a non-party who plaintiffs previously settled with on the jury verdict form. The plaintiffs also contended that to the extent the non-party was properly included on the form, the trial court should have instructed the jury on the effect of allocating negligence to the non-party. Why is this issue important to the plaintiffs? Because the jury handed down an $8,543,530 verdict but attributed 100% fault to the non-party. 

This case concerned a wreck between a passenger bus and a concrete truck. The concrete truck took a left turn and struck the bus causing it to collide with a light pole and eject the plaintiff and resulting in a traumatic brain injury to the plaintiff. The plaintiffs settled with the concrete truck defendant before trial and then proceeded to trial against several other defendants on various theories of liability concerning the passenger bus.

In this appeal, the Court of Appeals first explained that Tennessee has a system of modified comparative fault, adopted by the Tennessee Supreme Court in 1992 in the landmark case of McIntyre v. Balentine, 833 S.W.2d 52,56 (Tenn. 1992). Under this system, fault is apportioned among all parties in proportion to their degree of culpability, and a defendant is only liable for the percentage of damages that his or her own negligence caused. In McIntyre, the court also adopted the non-party defense, allowing juries to apportion fault to non-parties with culpability. McIntyre, 833 S.W.2d at 58. 

The plaintiffs attempted to argue that the settling defendant should not have been included on the verdict form because the case involved two separate impacts – one between the concrete truck and the passenger bus, and one between the bus and the light pole. The plaintiffs contended that it was the second impact that proximately caused the plaintiff’s traumatic brain injury, not the impact between the concrete truck and the bus.   

The Court of Appeals explained the two kinds of causation that a plaintiff must prove in order to prevail on a negligence claim – cause in fact, or “but-for” causation, and proximate cause. As the court explained, “[c]ause in fact means that the injury would not have occurred ‘but-for’ the negligent conduct.” Proximate cause, on the other hand, concentrates on three factors:

(1) whether the tortious conduct was a substantial factor in bringing about the harm complained of; (2) whether there is some rule or policy that should relieve the wrongdoer of liability because of the manner in which the tortious act resulted in the harm; and (3) whether the harm could have been reasonably foreseen or anticipated by a person of ordinary intelligence and prudence. (citing Hale v. Ostrow, 166 S.W.3d 713, 719 (Tenn. 2005).

The Court of Appeals found that all three factors were met with regard to the concrete truck – it was a substantial factor in bringing about the plaintiff’s injuries, the plaintiffs did not cite any rule or policy to relieve the concrete truck of liability, and the plaintiff’s injuries were a reasonably foreseeable result of the concrete truck’s negligence. Thus, the court held that the concrete truck should have been included on the verdict form.

The court then turned to the plaintiffs’ argument that the trial court should have charged the jury about the effect of a finding of fault on the part of the concrete truck. Because the jury apportioned all of the fault to the concrete truck and since the plaintiffs had already settled with the concrete truck, the plaintiffs were unable to recover any of the awarded damages of more than $8.5 million.

The plaintiffs argued that McIntyre supports their position because in McIntyre the court states that “the trial court shall instruct the jury on the effect of the jury’s finding as to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or defendants.” McIntyre, 833 S.W.2d at 57. However, the court disagrees finding that this language only provides that the jury should learn the effect of allocating fault between plaintiffs and defendants, not defendants and defendants. The court explains that if the jury were to know that a plaintiff could not recover the full award from one defendant, the jury might allocated more fault to another negligent actor. The Court of Appeals therefore found no error in the trial court’s decision not to instruct the jury on the effect of allocating fault to the concrete truck. 

My memory is that this is the first Tennessee Court of Appeals opinion on the issue of whether the jury should be instructed of the effect of finding of "0%" of fault.   The Tennessee Supreme Court will be asked to hear this case.

NECC, Compounder Involved in Meningitis Cases, Files Bankruptcy

As predicted, New England Compounding Pharamcy, Inc., the owner of the New England Compounding Center (NECC), filed for bankruptcy last week.  NECC is the company that provided contaminated steriods that killed and hurt hundreds of people, including many in Tennessee and Kentucky.

Click the link to view NECC's bankruptcy filing. Petition.pdf

The bankruptcy filing means that no further lawsuits can be filed against NECC at this time.  The filing lists claims that were filed as of the date of the bankruptcy.  However, the list is only a partial list of claims.  Many firms, including our firm, chose not to file lawsuits against NECC at this time, knowing that a bankruptcy filing would shut down litigation against the company pending further court order. 

Fungal Meningitis Outbreak: Do Those Who Received Contaminated Steroids But Who Do Not Get Fungal Meningitis Have A Claim for Damages Under Tennessee Law?

The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm:  (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease.  (Note:  I understand this is a simple breakdown and that in fact there will be several sub-groups within one or more of these groups.)

Do the people in the last grouping have a claim for damages under Tennessee law?  That is, if a person can prove that he or she was exposed to the contaminated product, knew of the exposure, experienced understandable emotional distress after he or she learned of the exposure, is there a claim for damages under Tennessee law?

I believe the answer to that question is "yes."  The case I turn to for support of this opinion is Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585 (Tenn. 1993).  The issue in Carroll was whether a plaintiff may recover damages for negligent infliction of emotional distress, based on the fear of contracting the Acquired Immunodeficiency Syndrome (AIDS), without presenting evidence that he or she was actually exposed to the human immunodeficiency virus (HIV or the AIDS virus)  The Court answered this question "no" and dismissed the case.   

However, in reaching this result, the Court said as follows:

we hereby formally adopt the "actual exposure" approach [to imposing liability]. In order to recover emotional damages based on the fear of contracting AIDS, the plaintiff must prove, at a minimum, that he or she was actually exposed to HIV. And even assuming that the plaintiff was actually exposed to HIV, liability will attach only to the extent that the resulting emotional distress was within the range of that experienced by an ordinary, reasonable person under the circumstances. Moreover, any damages recoverable for emotional distress will be "confined to the time between discovery of the [exposure] and the negative medical diagnosis or other information that puts to rest the fear of injury."  [Citations omitted.]

I believe Carroll is still good law.  Thus,l I believe those people who can demonstrate they received contaminated epidural steroid injections (and perhaps other types of steroid injections as well, depending on how the facts develop) and who suffer emotional distress as a result will be able to recover damages for emotional distress from the time between the discovery of the exposure until the time he or she receives a negative medical diagnosis or other information that puts to rest the fear of contracting fungal meningitis.  There will be a big fight over whether expert proof of emotional distress will be required.

We still don't know exactly how long people are at risk for contracting fungal meningitis after they are exposed to it.  The Centers for Disease Control says the exposure period is four weeks or longer.  In fact, the CDC recommends that anyone with symptoms linked to fungal meningitis in the "several months" following exposure should seek prompt medical attention even if they have been previously evaluated.  Here are the symptoms to be concerned about:

  • New or worsening headache
  • Fever
  • Sensitivity to light
  • Stiff neck
  • New weakness or numbness in any part of your body
  • Slurred speech
  • Increased pain, redness or swelling at your injection site

As I have said in other posts, most recently in this post called "Fungal Meningitis Outbreak: Lots Of Questions Remain," there is still a lot we do not know about all of the legal consequences of the fungal meningitis outbreak.  However, I believe Tennessee law will permit those exposed to contaminated steroids but avoided contracting fungal meningitis to be able to seek damages for emotional distress.  Of course, such people will still have to prove the liability of the product manufacturer or others involved.

 Other posts on the fungal meningitis outbreak:

Fungal Meningitis, Tort Reform, and Damages in Tennessee Personal Injury and Wrongful Death Cases

Who Has Legal Liability Arising From the Fungal Meningitis Outbreak?


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Who Has Legal Liability Arising From the Fungal Meningitis Outbreak?

The fungal meningitis outbreak continues to grow.  Five patients have died and over 40 other patients have contracted fungal meningitis, reportedly after each of them received the steroid  methylprednisolone acetate compounded by the New England Compounding Center ("NECC").  Each of the patients received the steroid as treatment for chronic back pain.

Allegedly, the steroid injections were contaminated with a fungus that led to meningitis, an infection of the lining of the brain and spinal cord. Fungal meningitis is very rare and presents a real risk of death to the patients who contract it.

Who has legal responsibility for this outbreak?  There is a substantial amount of investigation that must be done to fully answer that question.  The Centers for Disease Control is coordinating the multi-state investigation into the fungal meningitis outbreak and will help get to the bottom of the matter from a scientific standpoint.  At this point, the CDC has not definitively demonstrated that the steroid is the source of the infection and, while that level of certainty is not necessary from a legal standpoint (in Tennessee, a victim or a victim's family would only have to prove that more likely than not the steroid was the source of the infection) the CDC's work will undoubtedly be of assistance in this matter.

That being said, it is not too early to analyze what entities and persons may have legal responsibilities, depending on how the facts shake out.   So, with the understanding that there are many missing facts that will affect the ultimate answer of who bears legal responsibility here, lets get to work.

At the outset, legal responsibility may depend on which state's law applies in any given case.  In a case filed in Tennessee, our choice of law rules would probably hold that Tennessee law applies to anyone who was injured or died from an epidural steroid injection that was administered in Tennessee.  This is not necessarily true in other states.

If Tennessee law applies and if the steroid is found to have been contaminated and the contamination occurred during the compounding process, the compounding pharmacy will face liability under Tennessee's law of product liability.  Those who "compounds" products are manufacturers under Tennessee law.  T.C.A. Sec. 29-28-102(4), Tennessee law prohibits product manufacturers from selling products  that are defective or unreasonably dangerous.  A manufacturer that sells a product that is contaminated with a substance that can cause serious injury or death has sold a product that is both defective and unreasonably dangerous (although under Tennessee law only one of those need be proved).  

Thus, if the evidence demonstrates that NECC was the compounding pharmacy that put steroid products into the stream of commerce and that the steroid products were  contaminated a the time of compounding with a substance that could cause fungal meningitis NECC has potential liability under Tennessee product liability law.  Why does NECC have only potential liability?  Because the patient bringing a claim under Tennessee law also will have to prove that, more likely than not,  the steroid was  the source of his or her fungal meningitis. 


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7th Circuit Finds Expert Testimony for Plaintiff Admissible in Products Liability Claims

The 7th Circuit Court of Appeals has upheld a plaintiff's verdict in a products liability case notwithstanding the defendant's assertion that the plaintiff's expert should have been excluded under Daubert.

In Lapsley v. Xtech, Inc., No. 11-3313 (7th Cir. July 27, 2012) Industrial grease was propelled in a jet with enough energy to penetrate and pass through  the  human  body  like  a  bullet. That  jet hit and disabled plaintiff Leonard Lapsley.  The jury found that the accident occurred because defendant defectively designed the piece of equipment that propelled the grease.

Defendant challenged the admissibility of plaintiff's expert witness, arguing that he lacked a scientific basis for his testimony.  The trial judge permitted the witness to testify, and the defendant challenged that ruling on appeal after a jury found it liable for Lapsley's injuries.

The 7th Circuit Court of Appeals said this in affirming the trial court's ruling:


We do not require experts to drop a proverbial apple each time they wish to use Newton’s gravitational constant in an equation. Similarly here, the  burden of proof at trial, and certainly the guideposts of reliability attached to the Daubert inquiry, did not require Dr. Hutter to try to recreate the binding up of a ten thousand pound spring to produce a potentially deadly jet of industrial grease. Xtek was free to raise the lack of physical tests of the accident with the jury, and to attack any aspect of  the mathematical model that was used in place of physical re-creations. The district court, however, did not abuse its discretion by allowing Dr. Hutter to testify to the results of his mathematical simulations.


There is more.  Here is what the court said on the issue of whether the expert was properly permitted to testify on the foreseeability of the event:


Unlike the opinions discussed above, no  one needs to understand physics to counter design evidence effectively or to criticize it  as dependent on hindsight bias. “Vigorous cross-examination, presentation of contrary evidence, and careful  instruction on the  burden of proof are the traditional and appropriate  means of attacking shaky  but admissible evidence.”  Daubert, 509 U.S. at 596. “These conventional devices, rather than wholesale exclusion  under an uncompromising "general acceptance’ test, are the appropriate safeguards where the  basis of scientific testimony  meets the standards of Rule 702.” Id.
And, in concluding the opinion, the court said this:
The accident that disabled Leonard Lapsley appears to  have  been unprecedented, and fortunately it has not been repeated with other millwrights. The uniqueness of an accident can weigh against jury  findings of foreseeability and lack of reasonable care  in design, but that is a matter for the jury to decide. The jury here accepted Dr. Hutter’s uncontradicted expert opinion that  a reasonable designer would have considered the danger of the powerful spring being bound up unexpectedly and releasing its energy so as to act like a ram on the grease in the spindle assembly. Rule 702 provides a test of reliability, not of ultimate merit. District courts  acting as gatekeepers of scientific, technical, or specialized knowledge evidence retain significant discretion  under the flexible  Daubert inquiry. The district court here did not misapply Daubert, and Xtek has identified no compelling reason to disturb the court’s exercise of its discretion.
This opinion is a great resource for plaintiff's lawyers looking to admit expert testimony in cases involving one-of-a-kind incidents.  


Retailers Escape Responsibility for Injuries and Deaths From Dangerous Foreign-Made Products

I have a column that bears the same name as this blog that appears three times per year in the Tennessee Bar Journal. The January 2012 edition of the publication includes the column, this time titled “Retailers Escape Responsibility for Dangerous Foreign-Made Products.” 

The column addresses one provision of the poorly-named Tennessee Civil Justice Act of 2011 that limits the responsibility of those who sell unreasonably dangerous or defective products. The column is available at no charge by clicking on the link.

Retailers Escape Responsibility for Injuries and Deaths From Dangerous Foreign-Made Products

I have a column that bears the same name as this blog that appears three times per year in the Tennessee Bar Journal. The January 2012 edition of the publication includes the column, this time titled “Retailers Escape Responsibility for Dangerous Foreign-Made Products.” 

The column addresses one provision of the poorly-named Tennessee Civil Justice Act of 2011 that limits the responsibility of those who sell unreasonably dangerous or defective products. The column is available at no charge by clicking on the link.

Products Liability Case Alleging Failure of Vehicle to Have Rear Camera or Back-Up Sensors To Proceed

The Kentucky Court of Appeals has ordered in a trial in a products liability case against Nissan for failure to equip at 2002 vehicle to have a rear camera or back-up sensors.  

Sandra and Curtis Messerly  alleged that the failure of their 2002 Xterra to have either device caused the death of their 19-month old son, who was killed when his mother backed-up the vehicle.

Plaintiffs sued Nissan alleging that the 2002 Xterra was defective and negligently designed because it was not equipped with a rearview camera or back-up sensors.  Nissan moved for summary judgment on the ground that the 2002 Xterra was not defective or unreasonably dangerous as a matter of law.  Nissan argued that the risk of striking children while backing a vehicle is an obvious, well-understood risk of operating any passenger vehicle and
is inseparable from the product’s inherent characteristics. 
The Appellants presented the trial court with evidence that back-up technology, such as sensors and rearview video systems, exists and that Nissan had been developing the technology for years, as demonstrated by Nissan’s press releases related to concept cars.  Nissan had equipped some of their Japanese models prior to 2002 with back-up aids.
Nissan also argued that
the Appellants’ evidence was concentrated in two areas: showing that advanced back-up aids were used in some Nissan vehicles marketed outside the United States and statistics showing the number of injuries in backing collisions.  Nissan contended that the evidence offered by the Appellants did not raise an issue of material fact because Nissan’s motion for summary judgment did not question the feasibility of back-up aids and that the evidence of backing injuries only served to confirm that the risk was obvious and well understood by consumers.  Moreover, the Appellants did not have an expert that would opine that a reasonable manufacturer would have employed the back-up aids in 2002, or that Nissan had violated an industry or governmental standard by not putting back-up aids on the 2002 Xterra. 
The trial judge granted Nissan summary judgment.  The Plaintiffs raised the following arguments on appeal:
 (1) a genuine issue of material fact exists as to whether the design of the Nissan Xterra was unreasonably dangerous and that the trial court erred when it ruled that Nissan was entitled to judgment as a matter of law; (2) Texas federal courts have allowed two similar wrongful death backover cases to be tried by a jury, despite a Texas statute that creates a presumption of non-defectiveness where a vehicle meets government safety standards; and (3) the reasoning of the trial judge in deciding to grant summary judgment in favor of the defendants was inappropriate because the video recordings of court hearings show that the judge made factual findings that were not based on any evidence in the record, that the judge conducted an independent investigation of the blind zone on his own vehicle, and ignored Kentucky law on summary judgment.
The Court of Appeals ruled that a question of fact was present and remanded the case for a trial by jury.  
The case is Messerly v. Nissan North America, No. 2010-CA-000717-M  (KY Ct. App.  Dec. 2, 2011).
My guess is that the Kentucky Supreme Court will take a look at this case.

Plaintiffs Fall Down Hard in Two Cases Against Louisville Ladder

Two plaintiffs lost products liability cases against Louisville Ladder.  

In Bielskis v. Louisville Ladder, Inc.,  No 10-1194 (7th Cir. Nov. 18, 2011) the appellate court upheld the disqualification of plaintiff's liability expert, Neil J. Mizen.   Bielskis was injured while using Louisville Ladder mini-scaffold (model number SM 1404) and alleged a defect to a rolling castor on the device.

The trial judge refused to permit Mizen to testify after a Daubert challenge from the defense and granted summary judgment for the defendant.  The Seventh Circuit affirmed, and said that without expert testimony, Plaintiff, who

owned the scaffold for seven years at the time of the accident, and [ ] advanced no particular evidence about  its  condition when  it  was  received  from  the manufacturer. Thus , Bielskis    has   not   marshaled  sufficient evidence  that   the   mini-scaffold was defective at   the time it left Louisville Ladder’s control. Without evidence that  the mini-scaffold was defective at  the outset or  that it   was  free  in  the 7-year  interim period  from any abnormal use, Bielskis needs more than the  failure  of the caster stem to prove his case.   And with no  expert testimony, he lacks evidence to support  his product liability  allegations  of  strict liability  and negligence.
[Citation omitted.]   
The second victory for Louisville Ladder came from the Eleventh Circuit Court of Appeals in Cannioto v. Louisville Ladder, Inc., No. 11-12885 (Nov. 18, 2011).  Once again, the plaintiffs' expert, Charles E. Benedict, Ph.D, was excluded as a witness.
November 18, 2011 was a very good day for Louisville Ladder.  

Ford Found Liable for Rollover Crash

A Sacramento, California jury has awarded a substantial jury verdict against Ford Motor Company.

The vehicle involved was a 15-passenger Ford E-350 Econoline van.  According to the Sacramento Bee, "The van skidded off northbound Interstate 5 in Kern County after the tread separated on its rear right tire. Evidence at trial showed that  Ford officials had been contacted by the Goodyear Tire and Rubber Company and knew the product was defective but did not make an effort to contact its dealers or customers."

Jurors did find that one of the two men killed in the rollover, Tony Mauro, who was 41, was not wearing a seat belt when he was killed. But the panel also found that it would not have mattered in a crash in which the van rolled over four times while traveling at 70 miles per hour.

Ford was assessed with 59% comparative fault.

The paper reports that:

Mauro's wife and two sons were awarded $17,525.979 in past and future economic and non-economic damages. The jury found that Ford was responsible for 59 percent of the fault and Goodyear the other 41 percent. Goodyear, which had already settled with the plaintiffs, was not a defendant in the case. The panel attached no responsibility to Mauro for his death.Plaintiff Marlene Shirley was awarded a separate $5,242,670.09. She sustained severe abdominal injuries in the crash. She had her seat belt loosely fastened while she slept on a middle seat and Ford's lawyers said it was the reason for her injuries. The jury found she was 1 percent responsible for her injuries, Ford 58.5 percent and Goodyear 40.5.A third plaintiff, Alexander Bessonov, who suffered head lacerations in the crash, was awarded $292,000.

Ford was also assessed $50,000,000 in punitive damages.

The Ford 15-passenger van has been the subject of serious safety concerns over the years.  NHTSA says that "tire maintenance is paramount to preventing tragedies, such as these recent rollover crashes, from occurring. Users of 15-passenger vans need to make sure the vehicles have appropriately-sized tires that are properly inflated before every trip. The agency also points out that tires degrade over time. For this reason, NHTSA recommends that spare tires not be used as replacements for worn tires. In fact, many tire manufacturers recommend that tires older than 10 years not be used at all."

NHTSA recommends the following for anyone planning a trip in a 15-passenger van:

  • If you are an owner, make sure the vehicle is properly maintained.
  • Owners should make sure drivers are fully trained and experienced in operating a 15-passenger van and are properly licensed.
  • 15-passenger vans are very sensitive to loading and should not be overloaded under any circumstances. Agency research shows overloading not only increases rollover risk but makes the vehicle more unstable in any handling maneuvers.
  • Owners should make sure that properly sized tires are being used on their vehicles.
  • Before every trip, drivers should check the tires for proper inflation, and make sure there are no signs of wear. Correct tire size and inflation pressure information can be found in the owner’s manual.
  • If you are a passenger, make sure you buckle up for every trip.
NHTSA reports that 57 percent of 15-passenger vans have, at least, one significantly under-inflated tire.   Read more here.



Verdict Affirmed in Table Saw Injury Case - Saw Lacked "Saw Stop" Technology

Table saws are dangerous - but they don't have to be.  Stephen Gass developed technology called "Saw Stop" that prevents cuts and amputations when using table saws and other types of saws.

Read this white paper to see how the Saw Stop system works.  This video describes the system and shows a demonstration using Gass' hand.  This video shows how the saw works using a hot dog rather than a human finger.

Interesting stuff, if you do woodworking.  But why would I mention this subject on a torts blog?

Because the First Circuit Court of Appeals just upheld on plaintiff's verdict when a plaintiff claimed that a saw was defective because it lacked Saw Stop technology.  In Osorio v. One World Technologies, Inc., No. 10-1824 (1st Cir. 10/5/11), 

Osorio argued that the BTS 15 was unacceptably dangerous due to a defective design.  Osorio largely relied on the testimony of  his  witness,  Dr.  Stephen  Gass,  inventor  of  "SawStop," a mechanism that allows a table saw to sense when the blade comes into contact with flesh, immediately stops the blade from spinning, and  causes  it  to  retract  into  the  body  of  the  saw.  Dr.  Gass testified that since he developed SawStop in 1999, he has presented the  technology  to  several  major  manufacturers  of  table  saws, including Ryobi in 2000.  To date, none of the major power tool manufacturers  has  adopted  SawStop.  Osorio  alleged  that  the manufacturers' failure to incorporate SawStop into their designs is due to a collective understanding that if any of them adopts the technology, then the others will face heightened liability exposure for not doing so as well.
Ah, now you see why we are talking about woodworking on a torts blog.
Torts Today, the blog which informed me about this verdict, linked to this page from Fine Woodworking's website  that discusses the trial and verdict.    The Torts Today post also informs us that the CPSC is starting the rule-making process on this subject. 
It is about time, wouldn't you say?

Nevada Supreme Court Affirms Sanction of Striking Liability Defense Because of Discovery Abuse

 The Nevada Supreme Court has affirmed a trial judge order that struck a defendant's ability to argue liability, limiting it to contesting compensatory damages.


In Bahena v. Goodyear,  the trial judge struck the defendant's answer as to liability after it failed to follow prior court orders concerning several discovery matters, including the failure to produce a witness for a deposition. The court agreed with the trial judge that "repeated discovery delays attributed to Goodyear were such that continuing the trial date to allow discovery was not the appropriate remedy for Bahena since the prejudice was extreme and inappropriate."  The Supreme Court explained that the trial judge "noted that the Bahena plaintiffs included a 14-year old who had been in a persistent vegetative state for the past two years together will the estates of three dead plaintiffs"  and that "since the trial was scheduled to commence [shortly after the discovery deadline] Goodyear knew full well that not responding to discovery in good faith would require the trial date to be vacated"  because "there could have been open questions as to the authenticity of approximately 74,000 documents that were the subject" of a prior court order.

 In affirming the trial judge's decision, the Nevada Supreme Court noted that the trial judge had prepared nine pages of carefully written findings of fact an conclusions of law analyzing the relevant factors, concluding that the degree of willfulness by Goodyear was "extreme" and "totally untenable and unjustified" and that the "responses to [p]laintiff's' interrogatories are nothing short of appalling."

The decision is reported at 235 P.3d 592 (Nev. 2010).

Smoking Gun Memo Shows Up in Asbestos Trial

The Asbestos Law Journal has this great post on a huge asbestos verdict in Mississippi a short time ago.  The blog notes that "part of why the jury did so may be because of a handwritten note that indicates one of the defendants engaged in a cost-benefit analysis that concluded it was OK to give people cancer as long as the profit exceeded the cost of the ensuing lawsuits."

Here is the a PDF of the hand-written document at issue.   The operative language is about one-third of the way down the page.

SCOTUS Allows Lawsuits Over Seat Belts

From Reuters: 

The U.S. Supreme Court ruled that federal regulations setting vehicle safety standards do not bar lawsuits seeking damages from automakers for installing lap-only seat belts.

The unanimous ruling held that a California lawsuit against Mazda Motor Corp. over a fatal 2002 collision involving a 1993 Mazda minivan could proceed. A passenger sitting in a rear seat and wearing a lap-only seat belt was killed.

The lawsuit by the family of the passenger, Thanh Williamson, claimed that the minivan was defectively designed because it lacked a lap-and-shoulder seat belt for the rear seat.

Mazda said it complied with federal safety regulations in effect at the time and that an appellate court in California correctly ruled the product liability lawsuit could not go forward.

The Supreme Court overturned the appellate court ruling.

Justice Stephen Breyer said in the court's opinion that the federal safety regulation does not pre-empt state tort lawsuits claiming manufacturers should have installed lap-and-shoulder belts, instead of lap-only belts, on rear inner seats.



Judgment Affirmed in Land Rover Rollover Case

Mr. Pannu was seriously injured when his Land Rover Discovery (Series 1) sport utility vehicle rolled over following a chain of collisions.  Pannu alleged a design defect in the SUV and was awarded a judgment of $21,654,000.

The Court of Appeal of the State of California, Second Appellate District, affirmed the judgment last week.  Read the opinion in Pannu v. Land Rover North America, Inc., B218173 (Cal. Ct. App. 1/19/11) here.

The opinion is of interest to Tennessee lawyers who are interested in products liability cases because (a) it identifies several experts for the plaintiff who offer opinion testimony in rollover cases; (b) identifies the issues one confronts in a "typical" rollover case, (c) has some interesting comments on the opinions of Lee Carr, a frequent expert for the defense in motor vehicle products cases;  (d) identifies and discusses the opinions of several other defense experts one is likely to see in these cases; (e) discusses the application of the consumer expectation test (which we also have in Tennessee) to auto defect cases; and (f) discusses the application of the risk-benefit test (which we also have in Tennessee) to the facts.

Importantly, the opinion also discusses the award of economic damages and discusses the differences between lost profits and loss of earning capacity as person running numerous small businesses.    Plaintiff owned and actively managed several small businesses and was unable to do so after the wreck.  Damages for lost profits are not generally admissible in personal injury cases, but the plaintiff's lawyers approached the issue in a way the permitted the plaintiff to recover damages for his loss of ability to serve as a "franchise owner/ vice president."  An award of $11,654,000 in economic damages was sustained.  The court commented that "Land Rover's argument [against the damages for loss of earning capacity] is predicated on a distortion of the record."

It is difficult keeping up with changes in the law where you customarily practice.  The value of opinions from other states, however, is that we can benefit from the research and imagination of our fellow lawyers and use their hard work to benefit our clients.  I will continue to look for out-of-state opinions that I believe might be of assistance to my fellow Tennessee lawyers.

Seat Belt Preemption Case Before SCOTUS

Oral arguments were heard two months ago in Williamson v. Mazda Motors of America, and when the United States Supreme Court decides the case we will have a better understanding of the law of preemption.

At issue is whether a National Highway Traffic Safety Administration rule permitting the use of Type1 seat belts (lap belt only) in the middle seat of passenger vehicles preempts a claim by an injured passenger that the manufacturer should have installed a Type 2 belt (includes a shoulder harness) in the vehicle.

The California Court of Appeals held that the claim was preempted.  The California Supreme Court refused to hear the case.  The US Supreme Court heard oral arguments on the case on November 3.

Here is a copy of the California Court of Appeals opinion.

Read the briefs in the US Supreme Court here.

I will write about this case again after the Supreme Court issues a ruling.

Food Safety Bill Close to Becoming Law

Bill Marler has shared this summary of the new food safety legislation with us.  Bill actively worked to get this bill passed.

· S. 510 is intended to respond to several food safety outbreaks in recent years by strengthening the authority of the Food and Drug Administration (FDA) and redoubling its efforts to prevent and respond to food safety concerns.

· The legislation expands current registration and inspection authority for FDA, and re-focuses FDA’s inspection regime based on risk assessments, such that high-risk facilities will be inspected more frequently. The bill also requires food processors to conduct a hazard analysis of their facilities and implement a plan to minimize those hazards.

· The bill requires FDA to recognize bodies that accredit food safety laboratories domestically and third-party auditors overseas. The bill enhances partnerships with state and local officials regarding food safety outbreaks, and establishes a framework to allow FDA to inspect foreign facilities.

· The bill does NOT change the existing jurisdictional boundaries between FDA and the Department of Agriculture, and includes protections for farms and small businesses.

· The bill gives the FDA the power to order mandatory food recalls, in the event that a food company cannot or does not comply with a request to recall its products voluntarily.

Title I – Prevention

Records Inspection: Expands and clarifies FDA’s records inspection authority, such that FDA can inspect records regarding an article of food “and any other article of food that [FDA] reasonably believes is likely to be affected in a similar manner, will cause serious adverse health consequences or death to humans or animals.”

Registration: Requires facilities to renew registration with the FDA every two years, and to agree to potential FDA inspections as a condition of such registration. Gives the FDA Commissioner the power to suspend facilities’ registration in the event FDA determines the facility “has a reasonable probability of causing serious adverse health consequences or death.” A suspended facility shall not be able to “introduce food into interstate or intrastate commerce in the United States. A hearing would occur within two business days on any suspension. If the suspension is found warranted, the facility must submit a corrective action plan before its suspension could be lifted. The bill also states that the commissioner cannot delegate to other officials within FDA the authority to impose or revoke a suspension.

Small Entity Compliance Guides: Requires FDA to develop plain language small entity compliance guides within 180 days of the issuance of regulations with respect to registration, hazard analysis, safe production, and recordkeeping requirements.

Hazard Analysis: Requires facilities to analyze at least every three years their potential hazards and implement preventive controls at critical points. Further requires facilities to monitor the effectiveness of their preventive controls, take appropriate corrective action, and maintain records for at least two years regarding verification of compliance. The bill gives FDA the authority to waive compliance requirements in certain instances, and allows FDA to exempt facilities “engaged only in specific types of on-farm manufacturing, processing, or holding activities that the Secretary determines to be low risk.” The language also delays implementation for smaller establishments for up to three years.

Performance Standards: Requires FDA to review evidence on food-borne contaminants and issue guidance documents or regulations as warranted every two years.

Produce Safety: Establishes a process to set standards for the safe production and harvesting of raw agricultural commodities (i.e. fruits and vegetables). Requires FDA to promulgate regulations regarding the intentional adulteration of food—applying to food “for which there is a high risk of intentional contamination”—within two years, and issue compliance guidance as appropriate. Includes delayed implementation of up to two years for smaller establishments.

Fees for Non-Compliance: Imposes fees on facilities only in cases where a facility undergoes re-inspection to correct material non-compliance, or does not comply with a recall order and thereby forces FDA to use its own resources to perform recall activities. Importers would be subject to fees for annual re-inspections or for participation in the voluntary qualified importer program established under title III of the bill. Requires FDA appropriations funding to keep pace with inflation in order for fees to be collected. The bill gives FDA the authority to lower fee levels on small businesses through a notice-and-comment process.

Safety Strategies: Requires FDA, the Department of Agriculture, and the Department of Homeland Security to coordinate to create an agriculture and food defense strategy, focused on preparedness, detection, emergency response, and recovery. Requires reports from FDA on building domestic preventive capacity—including analysis, surveillance, communication, and outreach—and requires FDA to issue regulations on the sanitary transportation of food within 18 months of enactment.

Food Allergies in Children: Requires FDA to work with the Department of Education to develop voluntary guidelines to manage the risk of food allergy and anaphylaxis in schools and early childhood education programs. Authorizes new grants of up to $50,000 over two years for local education agencies to implement the voluntary guidelines.

Dietary Ingredients and Supplements: Requires FDA to notify the Drug Enforcement Administration if FDA believes a dietary supplement may not be safe due to the presence of anabolic steroids.

Refused Entry: Requires FDA to notify the Department of Homeland Security, and by extension the Customs and Border Protection Agency, in all cases where FDA refuses to admit foods into the United States on the grounds that the food is unsafe.

Title II – Detection and Response

Targeted Inspections: Requires FDA to prioritize inspection of high-risk facilities, based on a risk profile that includes the type of food being manufactured and processed, facilities’ compliance history, and other criteria. Requires FDA to inspect high-risk facilities once in the five years after enactment, and every three years thereafter; low-risk facilities would be inspected once in the seven years after enactment, and every five years thereafter. Foreign facility inspections would be required to double every year for five years.

Laboratory Testing: Requires FDA to establish within two years a process to recognize organizations that accredit laboratories testing food products, and to develop and maintain model standards for accrediting bodies to use during the accreditation process. Requires food testing for certain regulatory purposes to be conducted in federal laboratories or those accredited by an approved accrediting body, with results sent directly to FDA. Includes reporting and other provisions designed to support early detection among laboratory facilities.

Traceback and Recordkeeping: Establishes a series of pilot projects within nine months of enactment on “methods to rapidly and effectively identify recipients of food to prevent or mitigate a foodborne illness outbreak.” Requires FDA to issue within two years a notice of proposed rulemaking regarding recordkeeping requirements for high-risk foods. Permits FDA to request that farm owners “identify immediate potential recipients, other than consumers,” in the event of a foodborne illness outbreak. Delays implementation of regulations for up to two years for smaller establishments.

Surveillance: Directs FDA to enhance foodborne illness surveillance systems to improve collection, analysis, reporting, and usefulness of data on foodborne illnesses, and establishes a multi-stakeholder working group to provide recommendations. Reauthorizes an existing program of food safety grants through fiscal year 2015.

Mandatory Recall Authority: Provides FDA the authority to order recall of products if the products are adulterated or misbranded “and the use of or exposure to such article will cause serious adverse health consequences or death.” Requires FDA to provide an opportunity for voluntary recall by the manufacturer or distributor prior to ordering a recall and provides the responsible party the opportunity to obtain a hearing within two days regarding any FDA order for a mandatory recall. Requires federal agencies to establish and maintain a single point of contact regarding recalls, and requires FDA to take appropriate actions to publicize mandatory recalls through press releases, an internet Web site, and other similar means. Also gives FDA authority to order the administrative detention of food products when the agency has “reason to believe” they are adulterated or misbranded. Directs that only the commissioner has the authority to order a mandatory recall, a power that may not be delegated to other FDA employees.

State and Local Governments: Directs FDA, working with other federal departments, to provide support to state and local governments in response to food safety outbreaks. Requires the Department of Health and Human Services to set standards and administer training programs for state and local food safety officials. Creates a new program of food safety centers of excellence, and amends an existing program of food safety grants to fund food safety inspections and training, with an extended authorization through fiscal year 2015.

Food Registry: Permits FDA to require the submission of reportable food subject to recall procedures (excepting fruits and vegetables that are raw agricultural commodities). Requires grocery stores with more than 15 locations to post information about reportable foods prominently for 14 days.

Title III – Food Imports

Foreign Supplier Verification Program: Requires importers to undertake a risk-based foreign supplier verification program to ensure that imported food meets appropriate federal requirements and is not adulterated or misbranded. Requires FDA to establish regulations for the foreign supplier verification program within one year of enactment. Importers’ records relating to foreign supplier verification would be maintained for at least two years.

Voluntary Qualified Importer Program: Directs FDA to establish within 18 months a voluntary program of “expedited review and importation” for importers. Eligibility would be determined by FDA using a risk assessment based on such factors as the type of food being imported, the compliance history of the foreign supplier, and the compliance capacity of the country of export.

Import Certification: Permits FDA to require as a condition of importation a certification “that the article of food complies with some or all applicable requirements” under the Food, Drug, and Cosmetic Act. Requires FDA’s determination of certification requirements to be made based on risk assessments. Requires notices for imported food to list any country that previously refused entry for that food. Permits FDA to review foreign countries’ controls and standards to verify their implementation.

Foreign Government Capacity: Requires FDA to “develop a comprehensive plan to expand the technical, scientific, and regulatory capacity” of foreign entities exporting food to the United States. Permits FDA to inspect foreign food facilities, and requires the refusal of imported food if a registered exporter refuses entry of FDA inspectors into an overseas facility. Directs FDA to establish a system to recognize bodies that accredit third-party auditors to certify eligible foreign food facilities meet federal compliance requirements. Requires FDA to establish overseas offices in countries selected by FDA to “provide assistance to the appropriate governmental entities of such countries with respect to measures to provide for the safety of articles of food.”

Smuggled Food: Requires FDA to work with the Department of Homeland Security and Customs officials to develop a strategy to identify smuggled food and prevent its entry.

Title IV – Other Provisions

Funding and Staffing: Authorizes such sums in funding for fiscal years 2011 through 2015. The bill also sets staffing goals of 4,000 new field staff in fiscal year 2011, and a total of 17,800 through fiscal year 2014.

Employee Protections: Creates a new process intended to prevent employment discrimination against individuals reporting food safety violations. The Department of Labor is directed to review and investigate complaints of such discrimination through an administrative process, subject to appeal in federal court.

Jurisdiction: The bill notes that nothing within its contents shall be construed to alter the division of jurisdiction between the Department of Health and Human Services and the Department of Agriculture. Likewise, the bill notes that it shall not be construed in a manner inconsistent with American obligations under the World Trade Organization and other relevant international treaties.

Summary of Tester Amendment as Modified (Included in Harkin Substitute Amendment as passed the Senate):

· Clarifies that a “retail food establishment” shall not include the sale of food products at a roadside stand or farmer’s market, the sale of food “through a community supported agriculture program,” or the sale of food through any other “direct sales platform” designated by the Secretary.

· Exempts from recordkeeping and hazard analysis requirements a “very small business” as defined by the Secretary, as well as those facilities whose direct sales (to consumers and local restaurants) exceed their sales to distributors AND whose annual sales total fewer than $500,000 (adjusted for inflation). Requires such facilities receiving exemptions to submit documentation to FDA that the owners have identified potential food hazards OR are in compliance with state and other applicable food safety laws. Permits FDA to revoke exemptions in the event of a food outbreak directly linked to the facility or to protect the public health.

· Requires a study by FDA and the Department of Agriculture to help define the terms “small business” and “very small business” for purposes of the statute’s regulatory requirements.

· Requires facilities receiving exemptions under the amendment to “include prominently and conspicuously…the name and business address of the facility where the food was manufactured or processed,” either on food labels or at the point of purchase.

· Amends the timeline for the new hazard analysis requirements to specify that small businesses will have an additional six months to comply with the hazard control regulatory requirements (down from two years in the base bill) and very small businesses will have an additional 18 months to comply (down from three years in the base bill).

· Exempts from new produce safety guidelines those farms whose direct sales (to consumers and local restaurants) exceed their sales to distributors AND whose annual sales total fewer than $500,000 (adjusted for inflation). Requires farms receiving exemptions under the amendment to “include prominently and conspicuously…the name and business address of the facility where the food was manufactured or processed,” either on food labels or at the point of purchase. Permits FDA to revoke exemptions in the event of a food outbreak directly linked to the facility or to protect the public health.

Do Auto Safety Standards Save Lives?

On Tuesday the 26th I posted about a NHTSA report on traffic safety.   I saved for today a reference to what the organization believes is a major cause of the decrease in deaths and injuries in motor vehicle cases:   safety regulations and programs imposed by state and federal governments.

Here is a summary of the findings on this point:

The long-term declining trend observed in fatalities since reaching a high in the early 1970s has occurred while significant vehicle and occupant safety regulations and programs were being enacted by NHTSA and the States. NHTSA-administered behavioral and vehicle safety programs, both in the crashworthiness and crash avoidance areas, and through the issuing of Federal Motor Vehicle Safety Standards has contributed tremendously to the long-term downward trend seen in motor vehicle traffic crash fatalities. In 2008, an estimated 244 lives were saved by the use of child restraints, 13,250 lives of people 5 and older were saved by seat belts, 2,546 lives of people 13 and older were saved by air bags, 1,829 lives were saved by the use of motorcycle helmets, and 714 lives were saved by minimum-drinking-age laws (NHTSA, 2009). Significant life-saving vehicle technologies like electronic stability control (ESC) have begun to penetrate the vehicle fleet. NHTSA estimates ESC would save 5,300 to 9,600 lives and prevent 156,000 to 238,000 injuries in all types of crashes annually once all light vehicles on the road are equipped with ESC (NHTSA, 2007).
These findings are something we must consider as we see a push to rollback the regulation of motor vehicle and other industries.   

Suit Against Google Maps Falls Short on Causation Element

Hat tip to Abnormal Use:  The Unreasonably Dangerous Products Liability Blog for advising me about this Utah lawsuit.

Apparently, a  woman followed Google Maps walking directions on her Blackberry, walking  across  a four-lane highway where she was struck by an approaching vehicle. She  sued Google; here is a copy of the suit.

Her lawyer says that  the plaintiff f was walking in an area she had never been before, at a time when it was very dark, and that Google failed to warn the Plaintiff that walking routes may be missing sidewalks or pedestrian paths.  Here is an image of the scene from Google. Google says that every software version for mobile devices has had a disclaimer that advises walkers to use caution since Google Maps was launched in 2008.

The crux of the Plaintiff's lawsuit appears to be that the woman crossed the road believing there to be a sidewalk on the other side. According to her lawyer, on the other side of the road was a snow covered walkway that was of no use to pedestrians.
 It seems to me that a big problem in the case is that the plaintiff,  according to her own lawyer, wasn't half-way across the street before she walked directly into the path of an oncoming vehicle.   This seems to destroy the causation element of plaintiff's claim.  "I got hurt going to a place you sent me where I might have got hurt" is a tough causation argument to make.

I hope that the plaintiff's lawyer here is not relying on this case to meet his monthly (or even daily) overhead.  While I can whip up a scenario where there could be liability on Google maps, the facts as pleaded in this case don't come close to establishing  liability in my mind.   If they do, I am opening up an office in Utah and making a down-payment on this cabin on Big Saint Germain Lake in my beloved Northern Wisconsin.

SCOTUS To Consider Seatbelt Preemption Case

The United States Supreme Court has agreed to consider whether the family of a woman killed in a car accident should be permitted to bring suit against Mazda Motor Corp. alleging that the death was caused by the failure of Mazda to install three-point seatbelts in its 1993 MPV minivan.

Here are the questions presented in the case:

1.  Where Congress has provided that compliance with a federal motor vehicle safety standard “does not exempt a person from liability at common law,” 49 U.S.C. § 30103(e), does a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions preempt a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions?

2.  Under Wyeth v. Levine, does a federal motor vehicle safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts impliedly preempt a state tort suit alleging that the manufacturer should have warned consumers of the known dangers of a lap-only seatbelt installed in one of its vehicles?

The Court of Appeals of California would not let the case proceed, saying that the Williams' claims were preempted under federal law.  Here is a copy of the California opinion.

The Williams v. Mazda M otor Corp. case will be heard during the Supreme Court's 2010-2011 term.

Johnson and Johnson Issues Massive Product Recall

The good news is that a division of Johnson and Johnson  appears to be acting promptly to solve a problem.  The bad news is that the consumers who use the 43 recalled products for children and infants are going to be wondering if their children have suffered any harm from them..

Federal regulators have identified what they called deficiencies at a Johnson and Johnson manufacturing facility.  The products include  liquid versions of Tylenol, Motrin, Zyrtec and Benadryl.  The FDA called the potential for health problems "remote."

This is from the J & J subsidiary's press release on the subject:

McNeil Consumer Healthcare is initiating this voluntary recall because some of these products may not meet required quality standards. This recall is not being undertaken on the basis of adverse medical events. However, as a precautionary measure, parents and caregivers should not administer these products to their children. Some of the products included in the recall may contain a higher concentration of active ingredient than is specified; others may contain inactive ingredients that may not meet internal testing requirements; and others may contain tiny particles. While the potential for serious medical events is remote, the company advises consumers who have purchased these recalled products to discontinue use.

The company is conducting a comprehensive quality assessment across its manufacturing operations and has identified corrective actions that will be implemented before new manufacturing is initiated at the plant where the recalled products were made.


Here is a list of the products that are recalled.



Products Liability Judgment Against Ford Reversed

The South Carolina Supreme Court has reversed a judgment for the plaintiffs in a case against Ford Motor Company.  The plaintiffs claimed that the Ford Explorer in which they were riding had a defective cruise control and defective seat belts.

The court ruled that the trial judge should have excluded Bill Williams as an expert on cruise control diagnosis.  The court also ruled that Dr. Anoty Anderson was not qualified to reliabily testify as to alternative designs and his theory concerning the cause of teh sudden acceleration.

Finally, the court ruled that certain claimed "other similar incidents" were not substantially similar.

The case is Watson v. For Motor Company,  No. 26786 (S.C. March 15, 2010).


Medical Helicopter Crash Near Brownsville, TN

Various television stations are reporting that a medical helicopter crashed outside of Brownsville, Tennessee.  The NTSB has sent a team to the scene.

Apparently, the company operating the helicopter was Memphis Medical Center Air Ambulance Service, Inc., also known as  Hospital Wing

The helicopter was a Eurocopter Astar AS350B3 model. 

Three crew members were killed in the crash.  No patient was on the helicopter at the time.

There have been a significant number of emergency medical services helicopter crashes in the last few years, and improving the safety of these flights has been on the NTSB's Most Wanted List of Safety Improvements since 2008.  I wrote a blog post on this subject about one year ago, linking to a series of articles in the Wall Street Journal.

Form Protective Order For Use in Products Liability Case

Tim Edwards of Memphis has kindly shared a protective order in a products liability case.

SCOTUS Will Hear Vaccine Case

The United States Supreme Court has decided to hear Bruesewitz v. Wyeth,  a case where the Bruesewitz family says there should be legal recourse beyond the administrative process set up by the National Childhood Vaccine Injury Act

The minor plaintiff suffered seizures two hours after receiving her six-month DPT vaccine in 1992.  The seizures caused permanent neurological damage.  The Third Circuit Court of Appeals ruled against the Bruesewitz family.

The USSC docket number is 09-152.   The issue is stated as follows:

Whether Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 — which expressly preempts certain design defect claims against vaccine manufacturers “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning” — preempts all vaccine design defect claims, regardless whether the vaccine’s side effects were unavoidable.

Here is a copy of the cert petition.    Here is the brief in opposition.



Product Manufacturer Cannot Use Release Against Consumer

This is an interesting decision out of Colorado.

Executive Tans operated an upright tanning booth manufactured by Sun Ergoline. Before using the booth, Savannah Boles signed a release form provided by Executive Tans that  said as follows: “I have read the instructions for proper use of the tanning facilities and do so at my own risk and hereby release the owners, operators, franchiser, or manufacturers, from any damage or harm that I might incur due to use of the facilities.” After entering the booth, several of Boles’s fingers came in contact with an exhaust fan located at the top of the booth, partially amputating them.

The Colorado Supreme Court refused to allow the manufacturer of the tanning both to assert the release as a bar to the claim.  The court rejected the traditional test for determining the enforceability of exculpatory agreements (similar but not identical to the test we use in Tennessee) and court explained that

strict products liability evolved to accommodate, and is driven by, public policy considerations surrounding the relationship between manufacturers and consumers in general, rather than any particular transaction or contract for sale. In addition to the typical inaccessibility of information and inequality of bargaining power inherent in any disclaimer or ordinary consumer’s agreement to release a manufacturer, a claim for strict products liability is also premised on a number of public policy considerations that would be flatly thwarted by legitimizing such disclaimers or exculpatory agreements. Not least among these is the deliberate provision of economic incentives for manufacturers to improve product safety and take advantage of their unique 'position to spread the risk of loss among all who use the product.'   [Citations omitted.]
Citing both the Restatement (Second) of Torts and the Third Restatement of Torts, the court held that "that an agreement releasing a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void."
The case is Boles v. Sun Erogline, Inc.,  Case No. 08SC970 (Colo. S. Ct. Feb. 8, 2010).

Proposed Consumer Product Safety Commission Database Concerns Product Liability Defense Lawyers

Thompson Hine is a 99-year old law firm with offices in eight different cities.  Its products liability lawyers work do work in the aerospace, automotive, chemical, electrical, mechanical, medical device and pharmaceutical areas.

And they are concerned  about the implications of Section 212 of the Consumer Product Safety Improvement Act of 2008, which requires the Consumer Product Safety Commission (CPSC) to implement a publicly accessible, searchable database of consumer product incident reports. 

The firm reports that:

[o]n September 10, the CPSC issued its "Report to Congress Pursuant to Section 212 of the Consumer Product Safety Improvement Act of 2008 - Implementation of a Searchable Consumer Product Safety Incident Database," which outlines the CPSC's planned rollout of this database. As described below, this database has the potential to have far-reaching business and legal implications for how manufacturers, distributors and retailers of consumer products report and respond to consumer complaints.

The concerns?  First, the CPSC's control of the database "creates the potential for an increased number of, and potentially less efficient, investigations and recalls implemented by the CPSC."

Second, there are concerns on how companies should monitor or use the new site.

Third, "the database will serve as an easily accessible tool for plaintiffs in future litigation to locate potential evidence of "alleged other similar incidents" or evidence to support a punitive damages claim. "

Fourth, "the database will undoubtedly serve as a new resource for an always creative plaintiffs' bar searching for potential lawsuits. The searchable capacities of the database will enable plaintiffs' attorneys to search for potential personal injury or consumer claims, as well as to identify potential class actions or mass torts."

Thompson Hine reports that the target deadline for the new public database is March 11, 2011.

Read the entire paper here.



Economic Loss Rule Applied in South Carolina Truck Fire Case

The South Carolina Supreme Court has ruled that the economic loss rule precludes a truck owner's tort claims against the truck manufacturer.  The case is Sapp & Smith v. Ford Motor CompanyOpinion 26754 (S.C. December 21, 2009).

Sapp filed suit against Ford alleging property damage to his vehicle (there was no personal injury or damage to other property) as a result of a fire Sapp claimed was caused by a design defect in the cruise control switch, which he said would short circuit and cause a fire in the engine compartment.

As explained by the Court,

The economic loss rule is a creation of the modern law of products liability.  Under the rule, there is no tort liability for a product defect if the damage suffered by the plaintiff is only to the product itself.  Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 341, 384 S.E.2d 730, 734 (1989).  In other words, tort liability only lies where there is damage done to other property or personal injury.  Id.  

The purpose of the economic loss rule is to define the line between recovery in tort and recovery in contract.  Contract law seeks to protect the expectancy interests of the parties.  Tort law, on the other hand, seeks to protect safety interests and is rooted in the concept of protecting society as a whole from physical harm to person or property.  In the context of products liability law, when a defective product only damages itself, the only concrete and measurable damages are the diminution in the value of the product, cost of repair, and consequential damages resulting from the product's failure.  Stated differently, the consumer has only suffered an economic loss.  The consumer has purchased an inferior product, his expectations have not been met, and he has lost the benefit of the bargain.  In this instance, however, the risk of product failure has already been allocated pursuant to the terms of the agreement between the parties. On the other hand, the parties have not bargained for the situation in which a defective product creates an unreasonable risk of harm and causes personal injury or property damage.  Accordingly, where a product damages only itself, tort law provides no remedy and the action lies in contract; but when personal injury or other property damage occurs, a tort remedy may be appropriate.

In South Carolina, the "the economic loss rule does not preclude a homebuyer from recovering in tort against the developer or builder where the builder violates an applicable building code, deviates from industry standards, or constructs a house that he knows or should know will pose a serious risk of physical harm."   Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 341, 384 S.E.2d 730 (1989).  However, the Court explained  that that decision created an exception to the general rule that was not intended to trump the general rule. 

Plaintiff argued that Colleton Preparatory Academy, Inc. v. Hoover Universal Inc., 379 S.C. 181, 666 S.E.2d 247 (2008),  a later case in which the "majority held that the economic loss rule will not preclude a plaintiff from filing a products liability suit in tort where only the product itself is injured when the plaintiff alleges breach of duty accompanied by a clear, serious, and unreasonable risk of bodily injury or death," meant that the economic loss rule should not be applicable under these facts,  The Court disagreed, saying "[i]n our view, the traditional economic loss rule provides a more stable framework and results in a more just and predictable outcome in products liability cases.  Accordingly, we overrule Colleton Prep to the extent it expands the narrow exception to the economic loss rule beyond the residential builder context."

The concurring opinion is very interesting.  Here is an excerpt that gives you the gist of it:

Today, this Court would overrule Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 379 S.C. 181, 666 S.E.2d 247 (2008).  Colleton adheres to the Kennedy analysis framework.  If it is wrongly decided, then Kennedy should be overruled as well and this Court should simply say that the economic loss rule is not applicable to residential home building.  Of course, this would not explain the negative treatment of the rule in other areas such as professional services.  See Tommy L. Griffin Plumbing & Heating v. Jordan, Jones & Goulding, Inc., 320 S.C. 49, 55, 463 S.E.2d 85, 88-89 (1995) (finding design professionals, including engineers, may have a duty separate and distinct from contractual duties such that the economic loss doctrine would not prohibit a tort action); Beachwalk Villas Condo. Ass'n v. Martin, 305 S.C. 144, 146-47, 406 S.E.2d 372, 374 (1991) (finding a special duty for architects); Lloyd v. Walters, 276 S.C. 223, 226, 277 S.E.2d 888, 889 (1981) (finding an attorney liable for economic loss to a corporate shareholder when attorney breached a duty to the corporation); but see McCullough v. Goodrich & Pennington Mortgage Fund, Inc., 373 S.C. 43, 53, 644 S.E.2d 43, 49 (2007) (rejecting the notion of a special duty in the secured transactions arena). 

The inconsistent treatment of the doctrine, by use of varying analytical frameworks, does not provide the bench and bar guidance in the proper application of the doctrine.  The Court should simply pronounce a list of areas to which public policy prohibits the application of the economic loss doctrine and forego any legal analysis.  [Footnote omitted.]

Chief Justice Janice Holder and the Tennessee Supreme Court recently discussed  the economic loss doctrine.  The case is Lincoln General Insurance Company v. Detroit Diesel Corporation, No. M2008-01427-SC-R23-CQ (Tenn. Aug. 21, 2009).  The result?  "Tennessee does not recognize an exception to the economic loss doctrine under which recovery in tort is possible for damage to the defective product itself when the defect renders the product unreasonably dangerous and causes the damage by means of a sudden, calamitous event."  Tennessee has not yet definitively addressed a case where a plaintiff alleges that the economic loss doctrine should not apply even though only the product itself is injured because the breach of duty is accompanied by a clear, serious, and unreasonable risk of bodily injury or death.

Defendant's Discovery Abuse Results in Default Judgment of $8,000,000, Plus Fees

What do you do when a party to a lawsuit intentionally refuses to follow the rules?  One judge in Washington State knew what to do: the judge struck the defendant's answer, entered judgment for $8,000,000, and awarded attorneys' fees.  Last week the Washington Supreme Court had upheld the award.

The facts are almost impossible to summarize and readers are urged to review the opinion to learn the details.  The bottom line:

The court found (1) there was no agreement between the parties to limit discovery, (2) Hyundai falsely responded to Magaña's request for production and interrogatories, (3) Magaña was substantially prejudiced in preparing for trial, and (4) evidence was spoiled and forever lost. The trial court considered lesser sanctions but found that the only suitable remedy under the circumstances was a default judgment. Hyundai then appealed.

[Footnotes omitted.]

Here are some highlights from the opinion of the Washington Supreme Court:


A corporation must search all of its departments, not just its legal department, when a party requests information about other claims during discovery. Here Hyundai searched only its legal department. Hyundai's counsel told the trial court that in response to request for production 20, Hyundai's search "was limited to the records of the Hyundai legal department" and that "no effort was made to search beyond the legal department, as this would have taken an extensive computer search." CP at 5319. As the trial court correctly found, "[t]here is no legal basis for limiting a search for documents in response to a discovery request to those documents available in the corporate legal department. ... Hyundai had the obligation to diligently respond to Magaña's discovery requests about other similar incidents. It failed to do so by using its legal department as a shield. The trial court also found "Hyundai had the obligation not only to diligently and in good faith respond to discovery efforts, but to maintain a document retrieval system that would enable the corporation to respond to plaintiff's requests. Hyundai is a sophisticated multinational corporation, experienced in litigation." Id. Hyundai willfully and deliberately failed to comply with Magaña's discovery requests since Magaña's initial requests in 2000 and continued to do so.


Magaña's ability to prepare for trial was substantially prejudiced because of Hyundai's egregious actions during discovery. The Court of Appeals substituted its own discretion for the trial court's, which is inconsistent with the abuse of discretion standard. The record supports the findings of the trial court that Magaña was prejudiced in preparing for trial.


The record fully supports the trial court's other conclusions: there was no agreement between the parties to limit discovery,Hyundai's definition of "claims" was too narrow because Magaña's discovery request was broad, and the seats in the Hyundai Elantra were similar to the seats in the Hyundai Accent. These findings of fact also support the conclusion Hyundai willfully violated the discovery rules.


[Footnotes omitted.]

The case is Magana v. Hyundia Motor America, No.80922-4.(Wash. Nov. 25, 2009).  Read the opinion here.  Regular readers will recall that a Minnesota trial judge recently awarded millions of dollars in sanctions against a defendant railroad company and a Vermont trial judge recently awarded sanctions against a lawyer for the Roman Catholic Diocese when its lawyer violated a motion in limine.


Precise Fix for Defect in Toyotas Still Unknown

 Toyota has a problem with some of the vehicles it has manufactured and a little over 40 days ago issued a recall of 3.8 million of them.  According to Toyota, "[r]ecent events have prompted [the company] to take a closer look at the potential for an accelerator pedal to get stuck in the full open position due to an unsecured or incompatible driver's floor mat. A stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop the vehicle, which could cause a crash, serious injury or death."  Read more here.

Something else is going on.  Read this statement released by the National Highway Traffic Safety Administration (NHTSA) on November 4:

A press release put out by Toyota earlier this week about their recall of 3.8 million Toyota and Lexus vehicles inaccurately stated NHTSA had reached a conclusion "that no defect exists in vehicles in which the driver's floor mat is compatible with the vehicle and properly secured." NHTSA has told Toyota and consumers that removing the recalled floor mats is the most immediate way to address the safety risk and avoid the possibility of the accelerator becoming stuck. But it is simply an interim measure. This remedy does not correct the underlying defect in the vehicles involving the potential for entrapment of the accelerator by floor mats, which is related to accelerator and floor pan design. Safety is the number one priority for NHTSA and this is why officials are working with Toyota to find the right way to fix this very dangerous problem. This matter is not closed until Toyota has effectively addressed the defect by providing a suitable vehicle based solution.

NHTSA constantly monitors consumer complaints and other data. This comprehensive recall focuses on pedal entrapment by floor mats, but NHTSA will fully investigate any possible defect trends in these vehicles.

The recall affects Toyota models from 2004 – 2010. Specific models affected include 2007-2010 Toyota Camry, 2005-2010 Toyota Avalon, 2004-2009 Toyota Prius, 2005-2010 Tacoma, 2007-2010 Toyota Tundra, 2007-2010 Lexus ES350 and 2006-2010 Lexus IS250 and IS350.


Handling a Products Liability Case on the Fly

I must confess I have never spent a lot of time thinking about men's underwear.  Thus, it never crossed my mind that a products liability case could arise from men's underwear of any type.

Women's underwear are different.  I am not saying I spend much  time thinking about that subject either, but I know of at least one products case that arose because of claimed defect in a thong intended to worn by a woman.

But Albert Freed had a problem with his underwear.  He thought that his Hanes underware was defectively designed or manufactured because it "gaped open and acted like a sandbelt on [his] privates."  Apparently, this was not a pleasant sensation and allegedly caused an injury.

A Florida trial judge actually wrote an opinion finding for the defendant, concluding that the injury to plaintiff's penis was caused by sand in his swimming trunks and aggravated by the method plaintiff used to put on his underwear as well as his failure to mitigate damages.  Read the opinion to get a grasp on the facts as found by the trial judge.  Don't miss footnote 3.

The only good news to come out of this case is that the plaintiff acted pro se.

Thanks to New York Personal Injury Attorney Blog for informing me about this case.

Another Preemption Case Nears SCOTUS Review

On October 22, 2008 the Court of Appeals of California, Fourth Appellate District, Division Three, held that  FMVSS 208 preempted the plaintiffs claim that a vehicle with a lap-only seat belt in the rear inboard passenger seat was sold in a defective and unreasonably dangerous condition. Specifically, the court held that

to the extent plaintiffs contend defendants are liable for failing to install a lap/shoulder seat belt in the minivan's middle row inboard seat, their claim is barred by the version of FMVSS 208 in effect when defendants manufactured the minivan.

The case is Williamson v. Mazda Motor of America, Inc., Case No. G038845 and the opinion is published at 167 Cal. App. 4th 905.  The California Supreme Court denied review on February 11, 2009, and plaintiff filed writ of certiorari on April 22, 2009.  The case number before the Supreme Court is No. 08-1314.  Here is the current version of FMVSS 208.

Now, the United States Supreme Court has issued as order inviting the Solicitor General to file a brief in the case expressing the views of the United States. 

Products liability lawyers know that preemption is a hot topic and one that has a significant impact on the ability of consumers to pursue product liability claims.   I will follow this case and let you know if the Supreme Court grants certiorari.

Toyota Recall: Floor Mats Increase Risk of Injury and Death

The Toyota Motor Corp. has announced that it will recall 3.8 million vehicles in the United States. The recall affects Toyota models from 2004 – 2010. Specific models affected include 2007-2010 Toyota Camry, 2005-2010 Toyota Avalon, 2004-2009 Toyota Prius, 2005-2010 Tacoma, 2007-2010 Toyota Tundra, 2007-2010 Lexus ES350 and 2006-2010 Lexus IS250 and IS350.

The problem?  Toyota says that "[r]ecent events have prompted [it] to take a closer look at the potential for an accelerator pedal to get stuck in the full open position due to an unsecured or incompatible driver's floor mat. A stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop the vehicle, which could cause a crash, serious injury or death."

What should you do if you have one of these vehicles?  Remove the floor mat and do not replace it with any other type of floor mat.  Owners can also contact Toyota at 1-800-331-4331 and Lexus at 1-800-255-3987 for more information.

Forbes reported that the  recall  "followed a horrific crash last month in San Diego in which a mat was suspected of snagging a gas pedal on a runaway Lexus, ending with a fiery crash that killed four family members.A minute before the crash, the driver called police to say the car had no brakes and the accelerator was stuck. The runaway car was doing more than 120 mph when it hit a sport-utility vehicle, launched off an embankment, rolled several times and burst into flames. The car, equipped with all-weather floor mats, was on loan from a dealership while the driver's own vehicle was being repaired."









Juror Research on Google Results in New Trial

A post from the Mass Tort Defense blog highlights a real problem:  jurors conducting independent research during trials.  Indeed, in the case featured in the post, the juror conducted the research before the trial (after he received his summons to serve as a juror) but shared what he knew during deliberations.  The result?  A reversal of a defense verdict.

The blog post does a nice job summarizing Russo v. Takata Corp., 2009 WL 2963065 (S.D. 9/16/09).  You can read the entire opinion here.

Here is an excerpt from Sean Wajert's summary:

The state Supreme Court noted it was announcing no hard and fast rule that all such types of Internet research by a juror prior to trial without notice to the court and counsel automatically doom a jury's verdict. Rather, the court gave deference to the trial court, which had the distinct advantage of being present throughout the nineteen-day trial. The trial court was in the best position to determine whether material was extrinsic to the issues before the jury, or whether the extraneous material prejudiced the jury. The trial court's award of a new trial was affirmed.

The reasoning: statutory language in many jurisdictions limits the type of information that a juror may be asked to provide via an affidavit or under oath at a hearing on a motion for new trial. And that's the only way, typically, for a litigant to show juror conduct. The prohibition on admitting testimony and affidavits pertains to intrinsic information, which includes statements or discussions which took place during deliberations. Testimony and affidavits concerning extrinsic information, however, may be obtained from a juror. Extrinsic information includes media publicity, conversations between jurors and non-jurors, and evidence not admitted by the court. It also includes “knowledge relevant to the facts in issue not obtained through the introduction of evidence but acquired prior to trial, experiments, investigations, news media, etc.” Secondly, the type of after-acquired information that potentially taints a jury verdict should be carefully distinguished from the general knowledge, opinions, feelings and bias that every juror carries into the jury room.

This opinion reminds us of the need to urge the trial judge to repeatedly remind the jurors that they should not do independent research. 

Food Safety News

Food Safety News is a new publication sponsored by food safety expert Bill Marler and his firm Marler Clark.  It contains  information on the food safety issues of the day, whether they pertain to foodborne illness outbreaks, recalled products, or food politics.

The online newspaper  has bureaus in Seattle, Denver, and Washington, DC and has invited contributors from government, industry, academia, and consumer groups to share their viewpoints on food safety-related issues.

Fosamax Products Liability Case Ends in Mistrial

Florida AP reports that a federal judge declared a mistrial last Friday in a trial over whether Merck & Co.'s former blockbuster osteoporosis drug, Fosamax, causes painful jaw bone destruction.  The trial, which is the first of many concerning Fosamax,  started Aug. 11 in U.S. District Court for the Southern District of New York in Manhattan.

The article summarizes the case this way:

Merck faces lawsuits by roughly 1,500 plaintiffs who allege Fosamax caused the same painful jaw condition that Boles now has - osteonecrosis of the jaw, in which bone tissue dies and detaches from the gum. That causes difficulty with chewing or wearing dentures, among other problems.

[Merck's counsel] said that since July 2005, the drug's detailed package insert has stated that both Fosamax and a newer version that combines the drug with Vitamin D 'may cause jawbone problems in some people. Jawbone problems may include infection, and delayed healing after teeth are pulled.'

Read more here.

Products Liability Case Settled

A settlement has been reached in Mohr v. Daimler Chrysler Corp., a products liability case which alleged defects in a 2000 Dodge Caravan.

The Court of Appeals affirmed almost $5,000,000 in compensatory damage awards for the death of the driver and front-seat passenger in the case.  The court also affirmed a finding of no liability for injuries suffered by two passengers.  The court reduced the punitive damage award from almost $49,000,000 to $13,800,000.  A Rule 11 Application was pending before the Tennessee Supreme Court.

With interest, the judgment was over $26,000,000.

The case was settled for $22,600,000.  As everyone knows, Chrysler is in bankruptcy.  The settlement received court approval last Thursday.  The judgment was paid by insurers that posted surety bonds.  Safeco picked up $15.1 of the amount and Chrysler Insurance Co. picked up the balance.

Read the Court of Appeals opinion at 2008 WL 4613584 (Tenn. App. Oct. 14, 2008).

AAJ Seminar: "Litigating Pharmaceutical and Medical Device Cases"

AAJ is sponsoring a pharmaceutical and medical device seminar at the Venetian in Las Vegas on September 24-25, 2009.  The seminar, open only to AAJ members who represent plaintiffs, offers 11.25 CLE hours. 

The seminar is an effort lead by AAJ's Section on Toxic, Environmental, and Pharmaceutical Torts (STEP), which focuses on the toxic effects of pharmaceuticals, pesticides and herbicides, medical devices, consumer products, industrial pollution, and other environmental poisons.

The products that will be discussed include various heart devices, Hydroxycut, Avandia, pain pumps, asbestos, Paxil, and Gadolinium.  There is also be a presentation on Chinese drywall. 

Finally, there will also be litigation group meetings for Reglan, Durom Cup, Byetta, Hydroxycut, Heparin, E-Discovery, Yaz, Levaquin, Heart Devices, and STEP held in Las Vega on the 23rd and 25th.  The leader of your litigation group can provide you with more information about these meetings.  

Click on the link below to view the seminar brochure: Seminar Brochure (FINAL)(1).pdf

"New" Chrysler Steps Up to the Plate

New Chrysler (Chrysler Group LLC) has announced that it will be accepting product liability claims on vehicles manufactured by its predecessor, now known as Old Carco, but only for accidents occurring after June 10, 2009.    Chrysler yielded to pressure from consumer groups that aggressively lobbied for a law requiring warning stickers on used Chrysler vehicles, an effort which would have reduced the value of the vehicles.

From the New Chrysler Press Release: 

"We know a lot more about the viability of our business today than when we purchased Old Carco's assets in its bankruptcy proceedings several months ago," said John Bozzella, Senior Vice President, External Affairs & Public Policy, Chrysler Group LLC. "While Chrysler Group still faces challenges, we are confident that the future viability of the company will not be threatened if we accept these claims."

Read more here.

CPSC Renews Warnings About Bassinets

The Consumer Product Safety Commission has renewed warnings to parents that certain bassinets made by Simplicty present a risk of death to children.  From the press release:

[The CPSC] is once again urging all parents and caregivers to immediately stop using convertible "close-sleeper/bedside sleeper" bassinets manufactured by Simplicity Inc., of Reading, Pa. CPSC has learned of two additional infant deaths since the August 2008 safety alert and recall announcements that notified consumers of two infants who had strangled in their Simplicity bassinets. To date, CPSC is aware of four infants who have died in the close-sleeper bassinets.

Here is the problem:

The Simplicity 3-in-1 and 4-in-1 convertible bassinets, including bassinets with the Graco logo and “Winnie the Pooh” motif licensed by Disney Consumer Products, contain metal bars that are covered by an adjustable fabric flap. This fabric flap is secured by Velcro© fasteners, which are intended to be partially removed when the bassinet is converted into the bedside/close-sleeper mode. If the Velcro© fasteners are not properly re-secured when the fabric flap is adjusted, or if the consumer entirely removes the fabric flap exposing the metal bars, an infant can slip through the opening between the lower metal bar and the mattress support and become entrapped and suffocate or strangle.

Read the entire press release here.  The press release includes instructions on the model numbers subject to the recall and pictures of the product.



AAJ Seminar: "Litigating Pharmaceutical and Medical Device Cases"

AAJ is sponsoring a pharmaceutical and medical device seminar at the Venetian in Las Vegas on September 24-25, 2009.  The seminar, open only to AAJ members who represent plaintiffs, offers 11.25 CLE hours. 

The seminar is an effort lead by AAJ's Section on Toxic, Environmental, and Pharmaceutical Torts (STEP), which focuses on the toxic effects of pharmaceuticals, pesticides and herbicides, medical devices, consumer products, industrial pollution, and other environmental poisons.

The products that will be discussed include various heart devices, Hydroxycut, Avandia, pain pumps, asbestos, Paxil, and Gadolinium.  There is also be a presentation on Chinese drywall.

Click on the link below to view the seminar brochure: Seminar Brochure (FINAL)(1).pdf


Memphis BBQ Causes Salmonella Infections

For the last five or six years my friend Bill Marler, food poisoning lawyer extraordinaire, and I have worked together on food poisoning cases.   Bill knows this area like the back of his hand and is widely understood to be the lawyer with the greatest expertise in this field.  

One thing I really respect about Bill is that he still practices law at what I call the "retail" level.  I contrast that with what I call lawyers who function as "wholesalers;"  that is, lawyers who race to file personal injury cases as class actions (medical monitoring is different) and treat cases as "inventory."  Bill actually cares about the people he represents, and despite the fact that he files cases across America (unfortunately there is a real food safety problem in America) and spends a lot of time in Washington DC speaking out for food safety he still is hands-on with clients and gives them the attention that they deserve. 

Earlier today our firms filed a case on behalf of two people in Memphis who contracted salmonella poisoning after eating food served by A & R Barbecue in Memphis.  Both plaintiffs, a father and his son,  suffered acute kidney failure as a result of their Salmonella infections, and needed extensive medical treatment, including dialysis.  Apparently twenty people were poisoned at this event.   Read more about the litigation here.

From Bill's blog:

Salmonella is one of the most common entering (intestinal) infections in the United States. Salmonella's (the disease caused by Salmonella) is the second most common food borne illness after Complicate infection. It is estimated that 1.4 million cases of salmonella's occur each year in the U.S.; 95% of those cases are food borne-related. Approximately 220 of each 1000 cases result in hospitalization and eight of every 1000 cases result in death. About 500 to 1,000 or 31% of all food-related deaths are caused by Salmonella infections each year. Salmonella's is more common in the warmer months of the year.

Salmonella infection occurs when the bacteria are ingested, typically from food derived from infected food-animals, but it can also occur by ingesting the feces of an infected animal or person. Food sources include raw or undercooked eggs/egg products, raw milk or raw milk products, contaminated water, meat and meat products, and poultry. Raw fruits and vegetables contaminated during slicing have been implicated in several food borne outbreaks.

The acute symptoms of Salmonella gastroenteritis include the sudden onset of nausea, abdominal cramping, and bloody diarrhea with mucous. Fever is almost always present. Vomiting is less common than diarrhea. Headaches, Malagasy (muscle pain), and arthritics (joint pain) are often reported as well. The onset of symptoms usually occurs within 6 to 72 hours after the ingestion of the bacteria. The infectious dose is small, probably from 15 to 20 cells.

To learn everything you need to know about food poisoning cases consult Bill's Marler Bog, one of the most highly-viewed legal blogs in the Nation.   And, to get a feel for the extent of the problem with food safety, read Bill's speech before the House of Lords dinner.

Post-Sale Duties

The current Brooklyn Law Review contains this article by Ken Ross and J. David Prince provides an overview of the post-sale duty sections of the Restatement (Third) of Torts:  Products Liability.

The article

provides an overview of the Restatement (Third)’s post-sale duty sections. In addition, it discusses relevant case law and the impact of the Restatement (Third) on developing case law. Part II provides a background of the post-sale duty sections of the Restatement (Third). Parts III-IX look back to case law prior to the Restatement (Third) and analyze how courts at that time dealt with post-sale duty issues including negligence standards, post-sale knowledge, defect timing questions, identification of product users, the duty to inform of safety improvements, and the duty to recall. Part X examines case law decisions that post-date the Restatement (Third)’s drafting, divided according to whether the court accepted, rejected, or adopted some variation of the Restatement sections. And lastly, Part XI provides a brief discussion of regulatory post-sale duties.

In Footnote 121, the article mentions two cases from Tennessee that hold that Tennessee does not recognize a post-sale duty to warn.  It is interesting, however, that the article does not cite the 2008 opinion in Flax v. DaimlerChrysler Corp.   Here  the language from Chief Justice Holder's majority opinion

Unlike plaintiffs in post-sale duty to warn cases, the plaintiffs in this case do not allege that DCC discovered problems with the seatbacks after the time of sale. On the contrary, the theory of the plaintiffs’ case was that DCC had knowledge that the seats were defective and unreasonably dangerous as early as the 1980s. Furthermore, DCC does not deny that it had knowledge of the performance of its seats at the time of sale but argues that the seats functioned in a non-defective and reasonably safe manner. There is therefore no dispute regarding DCC’s knowledge at the time of sale of the Caravan. Although the plaintiffs allege that DCC continued to receive notice that its product was dangerous after the sale, they do not allege that DCC received any new information during this period. Accordingly, this case does not present the facts necessary to allow us to consider the merits of recognizing post-sale failure to warn claims. Rather, the plaintiffs’ allegation that DCC was negligent in failing to warn the plaintiffs after the sale is an attempt to impose liability a second time for what is essentially the same wrongful conduct. If a defendant negligently fails to warn at the time of sale, that defendant does not breach any new duty to the plaintiff by failing to provide a warning the day after the sale. Instead, the defendant merely remains in breach of its initial duty. For these reasons, we conclude that the trial court erred by adopting and applying the post-sale failure to warn claim in this case. We express no opinion, however, as to the merits of recognizing that cause of action in an appropriate case.

Justice Clark concurred with these words:

The plaintiffs do not contend that the manufacturer of their minivan discovered problems with the seats after they purchased the vehicle. Thus, the case simply does not present facts necessary for us to consider the viability of a true post-sale failure to warn cause of action. For us to resolve that issue in the context of this case would be tantamount to giving an advisory opinion. See State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000) (noting that courts are not to render advisory opinions). In order to have a justiciable controversy, a real question rather than a theoretical or hypothetical one must be at stake. Id. If the rule were otherwise, the “courts might well be projected into the limitless field of advisory opinions.” Story v. Walker, 404 S.W.2d 803, 804 (Tenn. 1966) (internal citation
omitted). It follows that deciding whether Tennessee common law should recognize a post-sale failure to warn claim must await another day.

Justice Wade would have recognized the theory under the facts of the case:

I part with my colleagues who join in the lead opinion only as to the viability of a
cause of action based upon the post-sale duty to warn. By way of explanation, I would acknowledge the Restatement (Third) of Torts: Products Liability § 10 (1998) as authority, as did the trial court. I believe, therefore, that the trial court (which, of course, could not have known prior to the verdict that the jury would ultimately sustain the pre-sale duty to warn claim) properly admitted testimony about similar accidents taking place after the sale of the 1998 Dodge Grand Caravan for the limited purpose of establishing that the Defendant had notice of the defective seat design, which contributed to the death of Joshua Flax.

My point:  the article should have included a discussion, or a least a mention, of this case.

Thanks to Torts Prof for alerting me about this article.

West Virginia Rejects Claim That Ford Should Have Used Laminated Glass in Side Window

The Supreme Court of Appeals of West Virginia has ruled that a products liability claim was preempted by FMVSS 205, a safety standard that it says permits vehicle manufacturers to make a choice between tempered glass and laminated glass in side windows.

The court felt compelled to rely on Geier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000), "the guiding law of the land," even though it felt that the decision was "flawed because it requires courts to look beyond the properly-enacted federal statute or law and divine an agency's intent from extraneous materials to determine the preemptive effect of a regulation."

The bottom line: "the NHTSA gave manufacturers the option to choose to install either tempered glass or laminated glass in side windows of vehicles in FMVSS 205, permitting the plaintiff to proceed with a state tort action would foreclose that choice and would interfere with federal policy."

The United States Court of Appeals for the Fifth Circuit reached the opposite result in O'Hara v. General Motors Corp., 508 F.3d 753 (5th Cir. 2007).

The West Virginia opinion in Morgan v. Ford Motor Co., No. 34139,  (W.Va. June 18, 2009) may be read here.

GM Allowed to Escape Responsibility to Victims in Pending Tort Cases

Here is a copy of the court order in the GM bankruptcy that makes tort victims stand in line with other general creditors of the company.

The discussion of successor liability issues begins on Page 50.  Here is key language from Page 60 and 61:



This Court fully understands the circumstances of tort victims, and the fact that if they prevail in litigation and cannot look to New GM as an additional source of recovery, they may recover only modest amounts on any allowed claims—if, as is possible, they do not have other defendants who can also pay.  But the law in this Circuit and District is clear; the Court will permit GM’s assets to pass to the purchaser free and clear of successor liability claims, and in that connection, will issue the requested findings and associated injunction.  [Footnotes omitted.]



Post-Sales Duties

The current Brooklyn Law Review contains this article by Ken Ross and J. David Prince provides an overview of the post-sale duty sections of the Restatement (Third) of Torts:  Products Liability.

The article

provides an overview of the Restatement (Third)’s post-sale duty sections. In addition, it discusses relevant case law and the impact of the Restatement (Third) on developing case law. Part II provides a background of the post-sale duty sections of the Restatement (Third). Parts III-IX look back to case law prior to the Restatement (Third) and analyze how courts at that time dealt with post-sale duty issues including negligence standards, post-sale knowledge, defect timing questions, identification of product users, the duty to inform of safety improvements, and the duty to recall. Part X examines case law decisions that post-date the Restatement (Third)’s drafting, divided according to whether the court accepted, rejected, or adopted some variation of the Restatement sections. And lastly, Part XI provides a brief discussion of regulatory post-sale duties.

In Footnote 121, the article mentions two cases from Tennessee that hold that Tennessee does not recognize a post-sale duty to warn.  It is interesting, however, that the article does not cite the 2008 opinion in Flax v. DaimlerChrysler Corp.   Here  the language from Chief Justice Holder's majority opinion

Unlike plaintiffs in post-sale duty to warn cases, the plaintiffs in this case do not allege that DCC discovered problems with the seatbacks after the time of sale. On the contrary, the theory of the plaintiffs’ case was that DCC had knowledge that the seats were defective and unreasonably dangerous as early as the 1980s. Furthermore, DCC does not deny that it had knowledge of the performance of its seats at the time of sale but argues that the seats functioned in a non-defective and reasonably safe manner. There is therefore no dispute regarding DCC’s knowledge at the time of sale of the Caravan. Although the plaintiffs allege that DCC continued to receive notice that its product was dangerous after the sale, they do not allege that DCC received any new information during this period. Accordingly, this case does not present the facts necessary to allow us to consider the merits of recognizing post-sale failure to warn claims. Rather, the plaintiffs’ allegation that DCC was negligent in failing to warn the plaintiffs after the sale is an attempt to impose liability a second time for what is essentially the same wrongful conduct. If a defendant negligently fails to warn at the time of sale, that defendant does not breach any new duty to the plaintiff by failing to provide a warning the day after the sale. Instead, the defendant merely remains in breach of its initial duty. For these reasons, we conclude that the trial court erred by adopting and applying the post-sale failure to warn claim in this case. We express no opinion, however, as to the merits of recognizing that cause of action in an appropriate case.

Justice Clark concurred with these words:

The plaintiffs do not contend that the manufacturer of their minivan discovered problems with the seats after they purchased the vehicle. Thus, the case simply does not present facts necessary for us to consider the viability of a true post-sale failure to warn cause of action. For us to resolve that issue in the context of this case would be tantamount to giving an advisory opinion. See State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000) (noting that courts are not to render advisory opinions). In order to have a justiciable controversy, a real question rather than a theoretical or hypothetical one must be at stake. Id. If the rule were otherwise, the “courts might well be projected into the limitless field of advisory opinions.” Story v. Walker, 404 S.W.2d 803, 804 (Tenn. 1966) (internal citation
omitted). It follows that deciding whether Tennessee common law should recognize a post-sale failure to warn claim must await another day.

Justice Wade would have recognized the theory under the facts of the case:

I part with my colleagues who join in the lead opinion only as to the viability of a
cause of action based upon the post-sale duty to warn. By way of explanation, I would acknowledge the Restatement (Third) of Torts: Products Liability § 10 (1998) as authority, as did the trial court. I believe, therefore, that the trial court (which, of course, could not have known prior to the verdict that the jury would ultimately sustain the pre-sale duty to warn claim) properly admitted testimony about similar accidents taking place after the sale of the 1998 Dodge Grand Caravan for the limited purpose of establishing that the Defendant had notice of the defective seat design, which contributed to the death of Joshua Flax.

My point:  the article should have included a discussion, or a least a mention, of this case.

Thanks to Torts Prof for alerting me about this article.

GM Will Reman Liable for Future Products Claims

The New York Times reports that General Motors wil not be let off the hook for  future products liability claims when it emerges from bankruptcy. 

More On Products Claims Against Chrysler and GM

The National Law Journal has this article on the future of products liability claims against Chrysler and GM.   The United States Supreme Court has not yet ruled on the petition of consumers and plaintiffs' lawyers concerning the Chrysler bankruptcy.

Chrysler has 160 pending cases and GM has about 300.

More on GM and Chrysler Products Claims

Here is an article from The Hill that gives more information on how existing products liability claims against GM and Chrysler will be handled.  Bottom line:  claimants will be unsecured creditors, and will be thrown into the pot with all of the other unsecured creditors.

Of course, to the extent that the claims are covered by insurance, and the insurance company is still viable, the money should be paid.  The problem, of course, is that the self-insured retention for these companies is quite high (I don't know how much) and thus those able to prove their claims will be in the unsecured creditor pool for the retention amount and can only look to the insurance company for excess amounts.

For my other posts on this subject look here, here, and here.

As discussed in a previous post,  the other avenue for monies for those with existing claims not reduced to judgment are claims against dealers, component part manufacturers, etc.  Who can be held liable is very much subject to the facts and applicable state law.

How much are the unsecured claims?  How much money will be left to divide among unsecured claimants?  It will take some time to determine the answers to those questions.  I have seen the Chrysler tort claims valued at several different numbers hundreds of millions of dollars apart.  It is easy to value a claim if it is reduced to judgment.  If the claim is a pending claim then the value can only be estimated until it is reduced to judgment or until an agreement is reached on how to put a dollar value on the claim. 

But that are many unsecured claims.  Here is a list offered by one law firm of the top 50 unsecured creditors in the Chrysler action.  Leading the way is Ohio Module Mfg.Co, LLC with a stated claim of over $70,000,000.  Number 50 on the list is purportedly owed $5,000,000.    I did not take the time to add them up but the numbers appear to total over $700,000,000.   One article suggests that the total trade debt is $1.5 Billion.

Victims' Lawyers (and Others) Discuss GM and Chrysler Products Claims

Here is an interview with two plaintiffs' lawyers who are actively involved in seeking monies for tort claimants who have claims against Chrysler and General Motors.

I have also included an article from that says "Fiat will be protected from any product liability lawsuits arising from claims of flaws in Chrysler vehicles sold before the sale's closing later this month. Anyone filing such lawsuits will be able to recover only from the limited assets of the old company."

Finally, here is the point of view of a claimant as published in the Daily News.

Chrysler Sale Bars Future Tort Claims

I have read Judge Gonzalez's Order of June 1 concerning the sale of substantially all of the assets of Chrysler to Fiat, and it certainly appears to me that the sale will cut off  future products liability claims. 

Here is the key language Pages 42 - 44 of  the Court's Order.

Category (3) consists of tort and consumer objections. Those objections relating to  lemon law and warranty claims have been resolved by the modification of relevant language in the Fale order. An objection (ECF Docket No. 1231) was raised regarding an environmental claim, but the property to which the claim related is no longer owned by the Debtors and the objection is therefore overruled. Various objections were raised related to property damage claims and personal injury and wrongful death claims, including those which have not yet occurred. Some of these objectors argue that their claims are not “interests in property” such that the purchased assets can be sold free and clear of them. However, the leading case on this issue, In re Trans World Airlines, Inc., 322 F.3d 283 (3d Cir. 2003) (“TWA”), makes clear that such tort claims are interests in property such that they are extinguished by a free and clear sale under section 363(f)(5) and are therefore extinguished by the Sale Transaction. See id. at 289, 293. The Court follows TWA and overrules the objections premised on this argument. Even so, in personam claims, including any potential state successor or transferee liability claims against
New Chrysler, as well as in rem interests, are encompassed by section 363(f) and are therefore extinguished by the Sale Transaction. See, e.g., In re White Motor Credit Corp., 75 B.R. 944, 949 (Bankr. N.D. Ohio 1987); In re All Am. Of Ashburn, Inc., 56 B.R. 186, 190 (Bankr. N.D. Ga. 1986).

The Court also overrules the objections premised on this argument. Additionally, objections in this category touching upon notice and due process issues, particularly with respect to potential future tort claimants, are overruled as to those issues because, as discussed elsewhere in this Opinion, notice of the proposed sale was published in newspapers with very wide circulation. The Supreme Court has held that publication of notice in such newspapers provides sufficient notice to claimants “whose interests or whereabouts could not with due diligence be ascertained.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950). Accordingly, as demonstrated by the objections themselves, the interests of tort
claimants, including potential future tort claimants, have been presented to the Court, and the objections raised by or on behalf of such claimants are overruled.

Other objections in this category are premised on the argument that a free and clear sale would be fundamentally unfair, inequitable, or in bad faith. The policy underlying section 363(f) is to allow a purchaser to assume only the liabilities that promote its commercial interests. See, e.g., In re New England Fish Co., 19 B.R. 323, 328-29 (Bankr. W.D. Wash. 1982); White Motor Credit, 75 B.R. at 951. Accordingly, objections premised on this argument are overruled. An objection in this category raised the Takings Clause of the Fifth Amendment, but this objection is overruled because the objector holds an unsecured claim, rather than a lien in some collateral that is property of the estate, which is a necessary prerequisite to a Fifth Amendment Takings Clause claim in the bankruptcy context. See U.S. v. Security Industrial Bank, 459 U.S. 70 (1982).  The same objection also raised the issue of the break-up fee being excessive, but this objection is overruled as untimely because that fee was approved in the Bidding Procedures Order and is not implicated since the assets are being sold to the original bidder. Another objection related to an asbestos claim raised both the failure to comply with section 524(g) and that the Sale Transaction improperly provides for the release of third parties, but this objection is overruled as to both issues because section 524(g) is inapplicable to a free and clear sale under section 363 and the Sale Transaction does not contain releases of third parties. Such claims can still be asserted against the Debtors’ estate. Other objections in this category which contend that the Sale Transaction is a sub rosa plan are overruled as to that issue but are addressed by the relevant sections of this Opinion.

What is unclear to me under this Order does, if anything to existing claims and judgments.  I will try to determine what is going there and let you know.

I am confident  that an appeal will be filed.

This decision, if it stands, will have an impact on component part manufacturers.  To the extent that a part fails you will see plaintiffs going directly to the component part manufacturer and not to Chrysler - the entity that injected the product into the stream of commerce.

But design claims?  Unless Chrysler out-sourced its design work, those claims will be gone unless state law permits a claim against the dealer.  Tennessee permits products liability claims against the retailer of a new product  if the manufacturer of the product is insolvent.  Of course, a lot of dealers are going out of business, but many of them have liability insurance that will provide some amount of monies who those who can prove that the vehicle was sold in a defective or unreasonably dangerous condition.

Here is my prior post on the Chrysler bankruptcy filing.

Cert Petition Denied in Tennessee Products Case

The United States Supreme Court denied cert in  Flax v. DaimlerChrysler Corporation, the products liability, punitive damages, and negligent infliction of the emotional distress case decided by the Tennessee Supreme Court last year.  Here is my post from last July on the decision by the Tennessee court.


Chrylser's Bankruptcy Filing - A Tort Lawyer's Thoughts

If you are breathing and can read, you know that Chrysler has filed a Chapter 11 bankruptcy petition.

I am not a bankruptcy lawyer.  I am not a corporate lawyer.  But the filing has some immediate consequences readily apparent to the reasonably prudent tort lawyer.

1. Pending Cases.  All tort cases against Chrysler will be stayed by the filing of the petition.  In the short-run, it will bring all action in those cases to a halt, even if suppliers and other defendants are parties to the case.  In the coming months, motions will be filed to permit the action to proceed against the non-Chrysler defendants and those issues will have to be sorted out.  Cases on appeal will also be stayed for some period of time.  People who have unpaid judgments against Chrysler will not be able to collect on those judgments.  Plaintiffs  who have judgments on appeal secured by surety bonds will be able to collect from the surety bond issuer if they are successful on appeal,  but the appeal will be stayed in the short-run.  Plaintiffs  who have judgments on appeal that are not secured by a surety bond will be general, unsecured creditors if they are successful on appeal.  Some effort will be made to have some money set aside from Chrysler's assets to pay pending judgments and pending claims.  How much will be paid on the dollar value of those judgments and claims?   By what process will the valuation of the pending claims be determined?  All of that remains to be seen.    Some of you may ask:  Chrysler has liability insurance, doesn't it?  Yes, but the self-insured retention is very high. 

2.  Plaintiffs with judgments or pending claims:  See above.

3.  Plaintiff's lawyers with pending claims:  See above.

4.  Defense lawyers with pending cases:  These cases are on hold until issues concerning the stay are resolved.  Plaintiff's lawyers will be trying to proceed with discovery in cases with co-defendants.  Chrysler will undoubtedly resist, because that discovery could impact Chrysler's interests in the litigation.  And then there is that little matter of accounts receivable ....

5.  Plaintiff's and plaintiff's lawyers who have cases that are not yet filed:  The stay applies bar the filing of a case against Chrysler.  They will need to consult with bankruptcy counsel on what must be done to preserve the statute of limitations in cases in which Chrysler is a potential defendant.   Tennessee plaintiff's lawyers will want to sue the retailer of the Chrysler product, because of T.C.A. Sec. 29-28-106(a)(3), which imposes liability on sellers of products if the manufacturer is  judicially declared insolvent.  Plaintiff's lawyers will also want to carefully examine the economic viability of these cases.

6.  Defense counsel in non-filed cases: Changes will present opportunities to grow business  for some lawyers and a loss in business for others.  In the meantime, uncertainty abounds.  This is not  a good time to be a young lawyer or unproductive partner.

7.  Experts.  Expert witnesses for plaintiffs and defendants will be put on hold pending the resolution of the stay issue.  Their future employment in pending and future Chrysler cases will be up in the air for several months.  Experts for the defense will be checking their fee agreements to see who is on the hook - Chrysler's law firm or Chrysler.  Chrysler's law firms will be doing the same thing.  Plaintiff's lawyers - email experts now and stop the work.

8.  Court reporters:  If cases are stayed depositions stop.  So do trials.

9.  Exhibit and model makers:  No cases, no exhibits and models.

10.  Auto dealers:  More risk for dealers,especially under the Tennessee law mentioned above and states with some form of joint and several liability. 

11.  Auto suppliers:  There will be more of an incentive to go after suppliers of component parts if Chrysler, the assembler of all the parts, has financial problems.  To be sure, if there is a problem with a component part, Chrysler has always had a right to indemnification from the manufacturer of that component part.  Now, the whole dynamic in those relationships has changed, and one could only guess what will happen next.  One this is for certain here:  change.

12.  Non-dealer and manufacturer co-defendants:  If the case against you has some form of joint and several liability, a hand will be digging into your pocket.

13.  Insurance carriers for dealers, suppliers, and co-defendants:  Get ready to spend money.

14.  Lawyers for insurance carriers for dealers, suppliers, and co-defendants:  Get ready to make some money, but look over your shoulder, because the firms who used to defend Chrysler will be looking for your business.

15.  Jury consultants.  Both sides frequently use them.  It has no need for focus groups, shadow juries or jury-pickers in the short-run.

16.   Chrysler's liability insurance companies:  I don't know enough about how those policies are written or layered to offer an opinion here.

 17.  Mediators:  Pending mediations will be canceled.  Don't look for any to be booked in the short-run.

18.  Investigators.  Counsel for both sides use them.  Business will decrease in the short-run.

19.  Videographers:  Used for depostions and inspections, but not in the short-run.

20.  Liquor stores and honky tonks:  Look for a surge in business.  Accept cash - do not run a tab.

P.S.  Some of you know that my beautiful and extremely bright wife defends Chrysler in products cases.   These are my thoughts, not hers.  Thus, this post is my responsibility and not hers.  She undoubtedly knows the answers to some of the questions I raised, but I know better than to ask. 

Genetic Defect in Sperm Gives Rise to Products Claim

A mentally retarded 13-year old girl has been permitted to purse a claim against a sperm bank that sold her mother sperm 14 years ago.  She has claimed that the sperm had a genetic defect that caused her mental retardation.

The case is Donovan v. Idant Laboratories.  Read more about the case here.

Thanks to Jonathan Turley for informing me of the opinion.

Peanut Butter and Peanut Recall List

Here is a list of the peanut and peanut butter products that have been recalled.

Open Note to Airplane Crash Lawyers

Please don't rush to New York and file a lawsuit over yesterday's crash. 

There is no reason to inject a lawsuit into the middle of the celebration over the wonderful outcome from what could have been a horrific tragedy. 

So, don't embarrass plaintiff's lawyers or the legal system by an immediate filing of suit.  Take a deep breath.  Discover some facts.  Talk to potential defendants and try to work something out before running  to the courthouse and trying to grab the spotlight. 

In other words, conduct yourself like a professional. 

Car Safety Data

The Department of Transportation has a site dedicated to car safety.  The site gives information about safety recalls, defect investigations, and early warning reports.

Want to learn more?  Go here.

SCOTUS Rules for Plaintiffs in "Light" Cigarette Case

The United States Supreme Court has ruled for the plaintiffs in a case involving an assertion of federal pre-emption in litigation involving whether selling "light" cigarettes was deceptive.

As pointed out in this article in the New York Times,

 "[t]he question before the court was not whether use of the term “light” amounted to fraud. It was, rather, whether plaintiffs should be allowed to sue at all given the federal Cigarette Labeling and Advertising Act, which required tobacco companies to place rotating warnings on their packaging and advertising."

The Court held that "[n]either the Labeling Act's pre-emption provision nor the Federal Trade Commission's actions in this field pre-empt respondent's state fraud claim."

The case is Altria Group Inc. v. Good, No. 07-562.  Read the 5-member majority opinion written by Justice Stevens here.  The dissent authored by Justice Thomas begins on the 21st page of the PDF of the opinion.


The Insurance Institute for HIghway Safety has announced its TOP SAFETY PICKS for 2009.

The picks " recognize[ ] vehicles that do the best job of protecting people in front, side, and rear crashes based on good ratings in Institute tests. Winners also have to have electronic stability control (ESC), which research shows significantly reduces crash risk."

IIHS reminds us that "[f]ront and side impacts are the most common kinds of fatal crashes, killing about three-quarters of the 28,896 passenger vehicle occupants who died in 2007. Rear-end crashes usually aren't fatal, but they result in a large proportion of crash injuries. Neck sprain or strain is the most commonly reported injury in two thirds of insurance claims for injuries in all kinds of crashes."

Read the press release here.  Click here to see vehicle ratings.  There is also a brochure to help consumers indentify the vehciles that passed the test.

Themes for Product Cases

Paul Luvera is a highly-regarded trial lawyer from Seattle.  His blog has this great post on slogans (read: themes) for trying product liability cases for the plaintiff.

Flax Opinion Released

The Tennessee Supreme Court has released the opinion in Flax.  Stated briefly, the Court affirmed the dismissal of  the NIED claim and re-instated the remitted punitive damages for the wrongful death claim.

For the first time in my memory, the TSC released 4 opinions on the case.  Get the links to all of the opinions here.  Justice Holder wrote the majority opinion. 

New Study: Rollovers and Roof Cruch

Vehicle rollovers result in a significant number of fatalities every year, and there has been a vigorous debate about the roll that roof strength plays in those deaths. 

Now, a new study from the Insurance Institute for HIghtway Safety reveals that stronger roofs would save lives.  The study concludes as follows:

"Increased vehicle roof strength reduces the risk of fatal or incapacitating driver injury in single-vehicle rollover crashes. This finding contradicts those from two previous studies on the topic, but the present study more tightly controlled potential confounding factors. The study focused on midsize SUVs, but there is no obvious reason similar relationships would not be found for other vehicle types, although the magnitudes of injury rate reductions may differ. Any substantial upgrade to the FMVSS 216 roof strength requirement would produce reductions in fatal and incapacitating injuries that substantially exceed existing estimates."

Here is a copy of the study.  This document discusses the issue (and other issues related to injuries and death occurring in SUVs) in lay terms.

New Products Liability Decision Released

The Tennessee Court of Appeals (Middle Section) has released an opinion in a products liability case.  As I have before, such decisions are few and far between and we can learn from everyone of them.

This decision is particularly important because it was authored by Judge (now Justice) Bill Koch.  It provides some insight into his views of compensatory and punitive damages.

The case is Duran v. Hyundai Motor America, Inc., No. M2006-00282-COA-R3-CV  (Feb. 13, 2008).  Read the opinion here.

"Other Similar Incident" Evidence

There are relatively few products liability cases filed in Tennessee, very few actually tried, and even fewer appealed.

So, when a products case hits the appellate courts, we all learn.  And when  evidence issues are  discussed in a product liability opinion there is cause for absolute jubilation.

Sparks v. Mena  held that "the trial court erred in excluding evidence of other similar incidents involving actual or potential surgical injuries with the same model of device, and  ... the trial court erred in excluding the testimony of plaintiff’s expert witness." 

On the OSI issue, the Court of Appeals ruled that the trial judge mistakenly applied the legal standard of TRE 404(b) to exclude the evidence and that the error necessitated a new trial.  The opinion has an extensive discussion of the law on this issue that is a must-read for anyone trying a products liability case.

The Court of Appeals also reversed the trial judge's decision to exclude plaintiff's expert witness.  The opinion has an excellent review of the standards for admissibility after the Brown v. Crown Equipment Corp.opinion.

The case number is No. E2006-02473-COA-R3-CV.  The opinion was released on February 5, 2008.

Pizza Contaminated with E-coli

General Mills Operations, a Wellston, Ohio, establishment, is voluntarily recalling approximately 3.3 million pounds of frozen meat pizza products because they may be contaminated with E. coli and may be linked to an outbreak of E. coli O157:H7 illnesses, the U.S. Department of Agriculture's Food Safety and Inspection Service announced today.  Eight cases have been reported in Tennessee.

The products involved include the following:

10.2-ounce packages of "Totino's The Original Crisp Crust Party Pizza Pepperoni."

10.2-ounce packages of "Totino's The Original Crisp Crust Party Pizza, Classic Pepperoni."

10.2-ounce packages of "Totino's The Original Crisp Crust Party Pizza, Pepperoni Trio."

10.7-ounce packages of "Totino's The Original Crisp Crust Party Pizza, Combination Sausage & Pepperoni Pizza."

10.5-ounce packages of "Totino's The Original Crisp Crust Party Pizza, Three Meat Sausage, Canadian Style Bacon & Pepperoni Pizza."

10.9-ounce packages of "Totino's The Original Crisp Crust Party Pizza, Supreme Sausage & Pepperoni Pizza with Green Peppers & Onions."

6.8-ounce packages of "JENO'S CRISP `N TASTY PIZZA, PEPPERONI."



According to this news report, "Each package also bears the establishment number "EST. 7750" inside the USDA mark of inspection as well as a "best if used by" date on or before "02 APR 08 WS." The company applies the "best if used by date" on the package based on a 155-day shelf life, however consumers are urged to look in their freezers for similar frozen pizza products and discard them if found."

We have been involved in several E:coli  0157:H7 cases over the years and are currently handling several contaminated peanut butter cases.  It seems that there is an increasing problem with food safety in our Nation.

Federal Preemption Case to be Heard by SCOTUS

The United States Supreme Court has agreed to decide "whether federal law pre-empts the product liability claims that diabetes patients filed in Michigan state court against pharmaceutical company Warner-Lambert & Co."    Read more here.

Learned Intermediary Doctrine

Ordinarily, product manufacturers have a duty to make and sell products that are reasonably safe and not defective.  If that is not reasonably possible, then the manufacturer has a duty to warn about defects or danger.  The  learned intermediary doctrine says that drug manufacturers owe no duty to warn consumers about the risks of consuming prescription drugs because the manufacturers can rely on the prescribing physician to do so.  Over twenty states follow this doctrine.  Tennessee  adopted the doctrine in Pittman v. Upjohn Co., 890 S.W.2d 425, 431 (Tenn. 1994)

But that ain't the law in West Virginia no more.  In Johnson & Johnson Corporation v. Karl, No. 33211 (W.Va. June 27, 2007), a majority of the Supreme Court of Appeals said this:

In rejecting the application of the learned intermediary doctrine to drugs that had been the subject of direct-to-consumer advertising, the Supreme Court of New Jersey opined, and we agree, that such advertising obviates each of the premises upon which the doctrine rests:

These premises: (1) reluctance to undermine the doctor patient-relationship; (2) absence in the era of “doctor knows best” of need for the patient's informed consent; (3) inability of drug manufacturer to communicate with patients; and (4) complexity of the subject; are all (with the possible exception of the last) absent in the direct-to-consumer advertising of prescription drugs.

First, with rare and wonderful exceptions, the “'Norman Rockwell' image of the family doctor no longer exists.” [Lars Noah, Advertising Prescription Drugs to Consumers: Assessing the Regulatory and Liability Issues, 32 Ga. L. Rev. 141, 180 n.78 (1997)] (citing Paul D. Rheingold, The Expanding Liability of the Drug Manufacturer to the Consumer, 40 Food Drug Cosm. L.J. 135, 136 (1985)). Informed consent requires a patient-based decision rather than the paternalistic approach of the 1970s. See Largey v. Rothman, 110 N.J. 204, 206, 540 A.2d 504 (1988) (discussing Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972)). The decision to take a drug is “not exclusively a matter for medical judgment.” See Teresa Moran Schwartz, Consumer-Directed Prescription Drug Advertising and the Learned Intermediary Rule, 46 Food Drug Cosm. L.J. 829, 831 (1991) (citing Margaret Gilhooley, Learned Intermediaries, Prescription Drugs, and Patient Information, 30 St. Louis. U. L.J. 633, 652 (1986)).

Second, because managed care has reduced the time allotted per patient, physicians have considerably less time to inform patients of the risks and benefits of a drug. Sheryl Gay Stolberg, Faulty Warning Labels Add to Risk in Prescription Drugs, N.Y. Times, June 4, 1999, at A27. “In a 1997 survey of 1,000 patients, the F.D.A. found that only one-third had received information from their doctors about the dangerous side effects of drugs they were taking.” Ibid.

Third, having spent $1.3 billion on advertising in 1998, supra at 12-13, 734 A.2d at 1251-52, drug manufacturers can hardly be said to “lack effective means to communicate directly with patients,” Noah, supra, 32 Ga. L. Rev. at 158, when their advertising campaigns can pay off in close to billions in dividends.

Consumer-directed advertising of pharmaceuticals thus belies each of the premises on which the learned intermediary doctrine rests.

First, the fact that manufacturers are advertising their drugs and devices to consumers suggests that consumers are active participants in their health care decisions, invalidating the concept that it is the doctor, not the patient, who decides whether a drug or device should be used. Second, it is illogical that requiring manufacturers to provide direct warnings to a consumer will undermine the patient-physician relationship, when, by its very nature, consumer-directed advertising encroaches on that relationship by encouraging consumers to ask for advertised products by name. Finally, consumer-directed advertising rebuts the notion that prescription drugs and devices and their potential adverse effects are too complex to be effectively communicated to lay consumers. Because the FDA requires that prescription drug and device advertising carry warnings, the consumer may reasonably presume that the advertiser guarantees the adequacy of its warnings. Thus, the common law duty to warn the ultimate consumer should apply.

And then added this:

Public policy dictates that the manufacturer should warn the ultimate user of the harmful effects of its pharmaceuticals since it involves a person's health. The knowledge of pharmaceutical side effects goes well beyond the scope of the average individual. The benefit in warning the consumer directly is far outweighed by the costs. It is not as though the manufacturer must incur costs to discover the risks as they are already known. It is only a matter of adding the consumer to the list of who to warn. . . .

. . . Since the early 1980's, direct-to-consumer advertising has boomed into a very profitable venture for
pharmaceutical manufacturers. Yet, consumers' exposure to harm has increased as a result. They are surrounded by various prescription advertisements in all forms of print and broadcast media. Advertisements directed to consumers, however, often supply partial or incomplete information. Additionally, self-diagnosis by the consumer has resulted from these advertisements, as well as patient-demand for the brand-name drugs. It is in the best interest of the general public that manufacturers have a duty to warn the ultimate user of side effects and risks. Courts are increasingly motivated to protect the consumer, and require manufacturers to warn more than just the physician.

. . . .

Pharmaceutical manufacturers spend millions to make millions more. They are pushing their products onto the general public like never before. Consequently, consumers need more protection. As a response to the changing times, courts have diminished the manufacturer's shield of the learned intermediary doctrine. They have imposed a duty to warn the consumer in addition to the physician. In doing so, the goal of product liability to protect the ultimate user from harm, is more attainable. In the end, the burden should be on the one producing health care, not the one consuming it.

Bordes, supra, 81 U. Det. Mercy L. Rev. at 286-87 (emphasis added). West Virginia physicians naturally have duties and responsibilities regarding their role in providing prescription medicines to consumers. It would be unreasonable not to require the manufacturers of those medicines to accept similar responsibilities

Read the majority opinion here.  Go here to read the concurring and dissenting opinions.

Starburst Candy Lawsuit

You have undoubtedly heard about the lawsuit that was filed that claims that Starbursts are too chewy and caused an injury to a woman's mouth. 

The plaintiff's lawyer is Brian Muawad from St. Clair Shores, Michigan.  He and his brother hold themselves out as competent in " Personal Injury, Auto Accidents, Medical Malpractice, Slip and Fall , Worker’s Compensation, Business Litigation, Criminal Law, Real Estate, Business Transactions, Business Sales, Liquor License, Lemon Law, Credit Reporting Problems, and Other areas of Law."   (There is no indication if by "other areas of the law" Brian includes mergers and acquisition, international tax, oil and gas, and entertainment law. )  He urges the public to "[c]all now for a free consultation to get the most value for your case."   See his advertisement here (go to Page 12).  I cannot find a website for their firm.

Brian is not listed as a lawyer and therefore the  rating of his ability by his peers is unknown.  He is a member of the Arab American Bar Association but, despite his claimed ability to handle tort cases for plaintiffs his name does not appear as a member of ATLA (now AAJ) (at least of the date of publication of the 2006-07 membership directory).   (To be sure, it only takes a law license and check to belong to AAJ.  AAJ membership is not a sign of competence.  AAJ membership is a sign that lawyer cares enough about his clients and tort practice that he will financially contribute to an organization dedicated to preserving the civil justice system and improving the competence of its members.)  He is a member of the Michigan Bar Association but the names of members of the Michigan Trial Lawyers Association are not available to the public so I do not know if he is a member of that organization.  If the MBA and the MTLA are like the TBA and TTLA one needs a law license and check to join.  Once again, competence over and above the ability to get a law license is not required.

Now, an open letter to Brian:

Good work, Brian.  Your actions will cause responsible lawyers to spend years attempting to explain why the stupid lawsuit  you filed should not be used to destroy the civil justice system.  The opponents of the civil justice system will use your ridiculous case to limit the rights of those with valid cases.   Your filing of this lawsuit will hurt  people for decades to come.  You played right into the hand of the enemies of the civil justice system.  Brilliant.

Do not give me the bullshit argument that "you had to help your client."  I do not expect clients to know the law.  It is your job to know the law.  It is your job to advise your client about whether a case has merit.   Anyone who has ever had one Starburst knows that they are chewy.  They are meant to be chewy.  You apparently allege no defect other than their inherent chewiness.  Case closed.  (By the way Brian, knives cut.  Do not file a "my client got cut by a knife" case. )  

I hope M & M Mars (the manufacturer of the candies) forces your hand quickly and seeks to hold you accountable for your conduct.   I am absolutely fed up by people like you who file stupid cases.  You ought to be ashamed of yourself.

So, you have had your fifteen minutes of fame.  Enjoy it.  And then spend the rest of your life knowing how much you have hurt the civil justice system, the citizens who need it, and the lawyers who care about it.   Then again, if that bothered you, you wouldn't haven't filed the case.

Vioxx Status

Vioxx is back in the news.  Merck won one and lost one in New Jersey and is on trial in Illinois.

In New Jersey, the jury condemned the pre- April 2002 label but approved the label issued that month.  The verdict was under New Jersey's consumer law fraud, which has a fee-shifting provision.  The jury will now consider the issue of causation on the pre-April 2002 label - the plaintiff is Frederick Humeston.  Read more here.

The Illinois case has just started and is expected to take four to six weeks.

Another Vioxx Trial, Another Defense Verdict

Merck won another Vioxx case in federal court, but when you hear the background of the plaintiff it is easy to understand why.

According to an AP report posted on, the plaintiff "had other risk factors for his heart attack, including tobacco use, high blood pressure, high cholesterol, diabetes and cocaine use."  The article goes on to state that defense lawyer "Phil Beck attacked [plaintiff] Dedrick's credibility, noting five worthless-check convictions and allegations that Dedrick lied under oath at a disability hearing.   Beck questioned whether Dedrick was telling the truth when he said he continued taking Vioxx even after being prescribed a narcotic painkiller. "

You have to wonder why the hell that case was filed, much less tried.  My guess is that it was filed to toll the one-year statute of limitations in Tennessee and that it was tried because it was part of the case-picking process used by the federal court in New Orleans to establish some benchmarks for the balance of the cases.

Read the entire article here.  By the way, the plaintiff was from Waynesboro, Tennessee.


Federal Judge Deals Pharma a Setback

Philadephia Federal District Judge Stewart Dalzell has rejected Novartis Pharmaceutical Corp.’s claim that the Federal Food, Drug and Cosmetic Act and FDA regulations preempt state failure-to-warn tort claims.

In an opinion issued in the Perry v. Novaritis Pharma Corp., NO. 05-5350 (USDC, ED PA October 17, 2006), Judge Dalzell rejected Novartis' claim that Novartis  the failure-to-warn suit should be dismissed because the claim was preempted by FDA labeling requirements for the product, which at the time did not require a warning about the risk of cancer.   Plaintiffs had claimed that use of the prescription drug Elidel for the treatment of a two-year-old’s eczema caused lymphoma.

The Judge said that "[p]reemption is unwarranted in the absence of clear evidence that state law requiring an additional warning would either compel the manufacturer to violate the terms of the FDCA  or the FDA regulations, or would somehow be disruptive of the statutory and regulatory scheme. This would generally limit preemption to cases where the FDA has made a particular  determination regarding a proposed warning."

He went on to say that "[i]n this case, a state law requirement to provide an additional warning would not force Novartis to choose between violating state and federal law. At the time Elidel was prescribed for Andreas Perry, the FDA had made no finding regarding a link between use of topical calcineurin inhibitors and increased cancer risk in children16 and no statute or regulation prevented Novartis from adding the warning. Because federal law was effectively silent on whether such a warning was warranted, state law was not barred from requiring it. ... Requiring Novartis to add a warning to the Elidel label would not disturb the balance of the regulatory scheme since FDA regulations make specific accommodation for adding a warning in the situation the Perrys allege."

Stupid Lawsuit Fails

Donald Matthews fell off a "loft" bed (similar to a bunk bed) and hurt his shoulder.  He sued the manufacturer of the bed, saying that he should have been warned about the risk of falling.

Oh yeah, by the way, he was a senior.  In college.  (His GPA at the time of the fall is unknown.) 

The jury actually gave him a verdict.  An appellate court in New Jersey reversed, saying " that the obviousness of the danger is an absolute defense to plaintiff's failure to warn action in this case."

The case is Matthews v. University Loft Company, DOCKET NO. A-1536-04T3 (Superior Court of New Jersey, Appellate Division August 15, 2006).  Read it here.

Notice to all adult readers:  If you are six feet in the air and fall to the ground you will hurt yourself.  While I am at it, knives are sharp. 

Vioxx Damage Verdict in New Orleans Thrown Out

Judge Fallon has thrown out the $50M compensatory damage award  and a $1M punitive damage award in the recent New Orleans Vioxx trial.  He ordered a new trial on damages.

No surprise here.  The compensatory award obviously had a significant punitive component. 

Here is the Order.

Summary Judgment for Drug Manufacturer Reversed

Hmm.  Summary judgment for a drug manufacturer is reversed?  In the 21st Century?  In Federal Court?   Now, that is something worth writing about.

In McNeil v. Wyeth, No. 05-10509 (August 22, 2006) the Fifth Circuit Court of Appeals faced an appeal after summary judgment was granted in favor of the manufacturer of Reglan, a drug used to treat gastroesophageal reflux disease (GERD).  The plaintiff had taken the prescription drug for multiple months over the 12 weeks approved by the FDA; each time the drug was ordered by a physician.  McNeil developed  Reglan-induced  tardive dyskinesia in addition to Reglan-induced extrapyramidal symptoms (EPS). 

She sued, alleging that "Wyeth had failed adequately to warn physicians and consumers of the increased risk of tardive dyskinesia that  accompanies long-term use of Reglan. McNeil  argued that Wyeth’s failure to warn rendered the inherently unsafe product unreasonably dangerous. Further, McNeil alleged that the Reglan label was misleading as to the risk of tardive dyskinesia and failed adequately to warn about the increase in risk associated with exposure to the drug for more than twelve weeks."  The lower court found the label adequate and dismissed the case.

The appellate court reversed; its opinion included the following:

(a)  "Warning the learned intermediary of a much lower risk than the actual risk could render the warning not just misleading, but ineffective.  When the risk described on the label is so low as to induce a doctor to undertake the risk, had he not done so if he were warned of the real risk, we cannot say that no reasonable jury could conclude that a warning was inadequate. Thus, if the manufacturer decides to label a risk as “comparatively rare” and also to provide a numerical quantification of that risk, that number must be within a certain degree of accuracy."

(b) "Wyeth argues that it does not have a duty to warn about risks of use longer than twelve  weeks because the label clearly states that the drug is indicated for treatment for no more than that duration. Thus, not only would such a warning be superfluous, but it would also be improper, because Wyeth allegedly cannot tell a medical professional how to exercise professional judgment on whether a drug should be  used longer than the period approved by the FDA. We disagree.  ... Because the widespread long-term use of Reglan suggests that Wyeth’s indication for use for no more than twelve weeks was widely disregarded, a jury could infer that Wyeth’s warning was ineffective and thus inadequate. Therefore, McNeil’s suggested additional warning about long-term use would not be superfluous. Moreover, the FDA regulations require a manufacturer to inform a medical professional
precisely how to exercise his professional judgment in certain circumstances."

(c) "Wyeth argues, however, that it was not required to update its label, because the studies indicating that the risk for long-term use could be a hundred times higher showed mere association
with a disease, not necessarily causation. Thus, Wyeth argues, because there could be a variety of other factors responsible for the “association” found in these studies, that association does not necessarily require a warning to physicians. This argument, however, is contradicted by the FDA regulations that require that the labeling “be revised to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug; a causal relationship need not have been proved.” 21 C.F.R. § 201.57(e) (emphasis added by the court).

And there's more - but you get the general idea.

If you try to take on a drug company on a failure to adequately warn of the risk of injury you need to read this opinion.

The folks with Vioxx cases will love this one.

Read it here.

Tissue Recalled - Donor Referral Services

Another day, another article about problems in the human tissue industry.  This time it is Donor Referral Services of Raleigh, N.C., a company run by a man named Philip Guyett.

This North Carolina firm in the business of body part brokering allegedly used an unsterile embalming room to get usable tissue.  The number of people who received the tissue is unknown.

No lawsuits appear to have been filed concerning the problem and, in fact, it is unknown whether any patients have been injured by the tissue.



Products in the News - Vioxx and Cigarettes

Merck got hammered twice yesterday, first in New Orleans and then in New Jersey.

In New Orleans, a federal court jury ordered Merck to pay $51 M to a retired FBI agent who suffered a heart attack after taking Vioxx for three years.  The case was a "must win" for the plaintiffs in the Vioxx litigation, who lost the first Vioxx trial in the federal court case track several months ago.

In New Jersey, Judge Higbee granted a motion for new trial in a case lost by a Vioxx plaintiff several months ago, a case tried before it became public knowledge that Merck had played games with the data underlying a published study on the "safety" of Vioxx.  The Judge "said that jurors should not have had to consider the [New England Journal of Medicine] article without knowing that its editors believed that Merck had misrepresented the results of the trial."   Judge Higbee is presiding over 7100 suits in New Jersey.

Then, the cigarette manufacturers got hammered in federal court by Judge Kessler.  She "agreed with the government that leading tobacco companies conspired to break anti-racketeering laws and deceive the public about the health risks of smoking for about 50 years."    She said the companies "suppressed research, they destroyed documents, they manipulated the use of nicotine so as to increase and perpetuate addiction ... and they abused the legal system in order to achieve their goal — to make money with little if any regard for individual illness and suffering, soaring health costs or the integrity of the legal system."  Hamstrung by federal court rulings that limited her ability to award damages, she ordered the companies to make corrective statements to the public about its conduct and  "to stop making false statements about the health effect of cigarettes, to stop stating that cigarettes advertised with descriptions such as "light," "low-tar" and "mild," are less hazardous than other types."  She also ordered injunctive relief concerning future violations of the RICO laws - a real potential hammer.  Read a story about the ruling here.  The ruling itself is here but I would recommend that you pour yourself another cup of coffee before you read it - it is 1653 pages long, plus exhibits.  Read the table of contents to get a flavor for the opinion.

I paged through it a saw a couple things that were make me want to read the whole thing:

* "Despite their internal acknowledgment of the hazards of secondhand smoke, Defendants have  fraudulently denied that ETS causes disease. That public position and Defendants’ efforts to deny  and distort the scientific evidence of the harmfulness of ETS are evidenced not only in decades of  press releases, reports, booklets, newsletters, television and radio appearances, and scientific  symposia and publications, but in evidence of concerted, multifaceted public relations strategies  designed to counter mainstream scientific publications."  Page 1523

* "Throughout the past fifty years, Defendants have engaged in parallel efforts to suppress,  conceal, and destroy documents and information in furtherance of the Enterprise’s goals of (1)  preventing the public from learning the truth about smoking’s adverse impact on health; (2)  preventing the public from learning the truth about the addictiveness of nicotine; and (3) avoiding  or, at a minimum, limiting liability for smoking and health related claims in litigation. These  activities occurred despite declarations by Defendants that (a) they did not conceal, suppress or  destroy evidence, and that (b) they shared with the American people all pertinent information  regarding the true health effects of smoking, including research findings related to smoking and health.  Page 1526

* "The Findings of Fact overwhelmingly demonstrate that Defendants took deliberate steps to protect,execute, and further the fraudulent  scheme by making statements that they knew were not true. Again, to give but one example, the  members of the Tobacco Institute Executive Committee, comprised of cigarette company  Defendants’ executives, approved TI communications directed to the public that promoted the  fraudulent position that there was an “open question” regarding whether smoking or nicotine is  addictive. At the same time, each of those executives’ companies had knowledge both that smoking  and nicotine are addictive and that smoking causes disease."  Page 1582

* "As Defendants’ senior executives took the witness stand at trial, one after another, it became  exceedingly clear that these Defendants have not, as they claim, ceased their wrongdoing or, as they
argued throughout the trial, undertaken fundamental or permanent institutional change."  Page 1634

I am willing to bet that this opinion will be bound and available for purchase in book stores within one month.

You can read the Final Judgment and Remedial Order here.  Take a look at the provisions enjoining the companies from violating the RICO laws and think what that means to the future of the industry.

Destructive Testing has posted an interesting article about destructive testing in products liability actions.  The article was written by Michael Hoenig and was originally published in the New York Law Journal.

The article discussed the recent case of Mirchandani v. Home Depot, U.S.A., Inc., 235 FRD 611 (D. Md. 2006), in which the court was faced with a request to permit destructive testing of a bolt that allegedly failed on a ladder.  The court sought to achieve a "balance between the 'costs of irreversibly altering the object and the benefits of obtaining the evidence sought in the case.'"  In doing so it weighed these four factors:

"(1) whether the proposed testing is reasonable, necessary and relevant to proving the movant's case;

(2) whether the non-movant's ability to present evidence at trial will be hindered, or whether the non-movant will be prejudiced in some other way;

(3) whether there may be any less prejudicial alternative methods of obtaining the evidence sought; and

(4) whether there are adequate safeguards to minimize prejudice to the non-movant, particularly the non-movant's ability to present evidence at trial. "

The Court allowed the testing to procedure, subject to certain safeguards designed to reduce any prejudice to the defendant.  Specifically, the court said that "defendant will be allowed to attend the testing; all test procedures will be photographed; and plaintiff will produce a detailed protocol of the intended testing, explaining all procedures."

Recall that in Tennessee Rule 34A of the Tennessee Rules of Civil Procedure provides that "[b]efore a party or an agent of a party, including experts hired by a party or counsel, conducts a test materially altering the condition of tangible things that relate to a claim or defense in a civil action, the party shall move the court for an order so permitting and specifying the conditions. Rule 37 sanctions may be imposed on an offending party."  The Mirchandani  case and the other cases cited in this article will be helpful to a trial court in determining the circumstances under which testing should be conducted.



Guidant's Attempt to File Papers Under Seal Challenged

Public Citizen has challenged an attempt by Guidant Corporation to keep secret certain papers filed in litigation in Minnesota.

The Public Citizen press release says that "two subsidiaries of Guidant that produce and sell controversial cardiac rhythm management (CRM) devices sued the health care consulting company Aspen Health Care Metrics for publishing information about the prices of Guidant’s pacemakers. The briefs supporting and opposing summary judgment, and all supporting papers, were filed under seal without any documentation of need for secrecy. ... 'Under well-established law, the public has a presumptive right of access to judicial records, which may only be overcome by a showing of sufficiently important countervailing interests,' the motion [which was filed to make the records public] reads. 'Guidant has never made such a demonstration, and it does not appear that Guidant will be able to do so.'"

Recall that Guidant is also involved in personal injury and wrongful death claims concerning problems with its implantable pacemakers.

Here is a copy of the press release and the memorandum of law filed in support of the motion.


Liability of Manufacturer For Design Defect When Customer Supplies Part of Design

The Eighth Circuit Court of Appeals has ruled (applying Minnesota law) that a product manufacturer who is following specs supplied by its customer can be liable for defective design in the evidence shows that the manufacturer particpated in the design of the product.

Of course, the general rule is that a manufacturer which follows the design of another is not liable for defective design unless the specifications are so obviously dangerous that they should not be followed.  Here, however, the plaintiff pointed to specific facts from which a jury could conclude that the defendant jointly designed the product.

The case is Thompson v. Hirano Tecseed Company, Ltd., No. 05-2813 (8th Cir. August 1, 2006).

Ford Recall Extending Recall Concerning Cruise Control

Ford Motor Company has recalled 6,700,000 vehicles that have faulty cruise control systems that can cause the vehicle to catch fire.

Ford now agrees that "brake fluid might leak from the switch that deactivated the cruise control once the driver stepped on the brake. That fluid can drip onto the cruise control’s electrical component, cause corrosion and ignite a fire. "  Read more here.

This site will allow you to determine if your vehicle has been recalled simply by plugging in your vehicle identification number (VIN).  If your vehicle has already burned up your VIN number is on your vehicle registration.  If that burned up too your dealer or the governmental entity that licensed the vehicle can give you the number.

California Jury Finds for Merck

The jury in the first Vioxx trial in California has ruled in favor of Merck.  Read more here.

First California Vioxx Trial Near Conclusion

The first of several thousand Vioxx cases in California is nearly complete.  I will let you know when the verdict comes in.

Bacardi 151 Rum Lawsuit Filed

Insurance Journal reports that a lawsuit has been filed against Bacardi, the manufacturer of 151 rum. 

The article says that "a bartender, who was not identified in the lawsuit, was pouring shots when a customer lit a menu on fire and placed it in the stream of alcohol. A bottle of Bacardi 151 that was being used to pour the shots turned into a flame thrower and sent flaming rum all over " the plaintiff.

I was involved in a similar case that went to trial in 1983.  Our client, an off-duty waitress in a restaurant in Alabama, was burned when a bottle of 151 rum exploded after a stream of the alcohol was exposed to flame.  The trial of that case resulted in the first million-dollar verdict in Nashville.

We looked at a potential products case against Bacardi at that time but decided not to pursue it.  We only made a claim against the restaurant owner.  There were several products claims pending against Barardi making such claims and I would guess that there has been more since then.  If my memory serves me correctly Bacardi 151 rum has the same flash point as gasoline.   That memory also tells me that Bacardi had, several years earlier, placed a warning label on bottles of 151 rum warning of the fire (perhaps not explosion - that is a little fuzzy to me) risk attendant to exposing 151 (and its vapors?) to open flame.  Of course, that warning does not serve to protect a customer who does not see it, but it makes for a great case against the bar.

The tough part about this lawsuit will be proving what Bacardi can do about the issue without taking the product off the market.  I am no bottling expert, but perhaps the bottle can be designed differently to reduce the risk of flashfires.  Indeed, my memory is that they made some change to address this issue, but I cannot recall what it was.   

That being said, the night after our victory we went to a great Nashville restaurant to celebrate.  At the table next to us the waiter was preparing cheeries jubilee and, guess what, he was about to use 151 rum to flame the cheeries.  In a room filled with people.  Including me.  I went over to him and explained why we were there and his face went white.  I continue to go that restaurant (most recently last week) and 23 years later they still do not use 151 rum to prepare flaming desserts.  (Any flaming dessert is still a risk in a crowded restaurant - I watch those folks extremely carefully anytime one is being prepared anywhere near me.)

The most gratifying thing about the case was the great response we received from the restaurant industry thereafter.  The restaurant we sued was a chain, and they mandated that flaming drinks could no longer be served in their restaurants.  Restaurant publications talked about the verdict, and other restaurant owners started a similar policy.   It was one of many cases when the tort system worked to deter inappropriate conduct by the defendant and others in the industry, thus preventing future injuries.

Thoughts on a Saturday morning at the lake ....

Victory in Duragesic Pain Patch Case

A jury in Texas has returned a verdict for the plaintiff in the first Duragesic pain patch case to go to trial.

Plaintiffs alleged that Michaelynn Thompson "died because the Duragesic patch released too much fentanyl, a strong pain reliever, into her body."

This article reports that there are 100 similar suits pending nationwide.

Merck Wins Vioxx Case

Breaking news: Merck won the most recent Vioxx case in New Jersey. The jury decided Merck failred to warn of the risk of heart attack associated with Vioxx, but that failure did not cause the plaintiff's death.  The jury found no fraud or misrepresentation by Merck.  Commentary to follow, as John is on the road to Seattle.

The Back Door is Open ...

Ok, so you spend millions of dollars on Congressional elections trying to avoid responsibility for making a product that a jury may determine is defective or unreasonably dangerous and you can't get enough votes to make it happen.

What's a Pharma to do?

Go through the back door, via regulation, with some help from your friends at the FDA. As of June 30 new regulations were placed in force to provide more concise and better organized patient information package insert sheets. In return for the huge inconvenience this places on drug manufacturers, the FDA included language that would exempt drug manufacturers from state product liability.

Sidley Austin distributed this newsletter piece about the changes.

The rule itself does not preempt state claims; the FDA's attempt to preempt state lawsuits is found in the preamble to the new regulations. An excerpt:

". . . FDA believes that at least the following claims would be preempted by its regulation of prescription drug labeling: (1) Claims that a drug sponsor breached an obligation to warn by failing to put in Highlights or otherwise emphasize any information the substance of which appears anywhere in the labeling; (2) claims that a drug sponsor breached an obligation to warn by failing to include in an advertisement any information the substance of which appears anywhere in the labeling, in those cases where a drug's sponsor has used Highlights consistently with FDA draft guidance regarding the ''brief summary'' in direct-to-consumer advertising . . . ; (3) claims that a sponsor breached an obligation to warn by failing to include contraindications or warnings that are not supported by evidence that meets the standards set forth in this rule, including ㋔ 201.57(c)(5) (requiring that contraindications reflect ''[k]nown hazards and not theoretical possibilities'') and (c)(7); (4) claims that a drug sponsor breached an obligation to warn by failing to include a statement in labeling or in advertising, the substance of which had been proposed to FDA for inclusion in labeling, if that statement was not required by FDA at the time plaintiff claims the sponsor had an obligation to warn (unless FDA has made a finding that the sponsor withheld material information relating to the proposed warning before plaintiff claims the sponsor had the obligation to warn); (5) claims that a drug sponsor breached an obligation to warn by failing to include in labeling or in advertising a statement the substance of which FDA has prohibited in labeling or advertising; and (6) claims that a drug's sponsor breached an obligation to plaintiff by making statements that FDA approved for inclusion in the drug's label (unless FDA has made a finding that the sponsor withheld material information relating to the statement). Preemption would include not only claims against manufacturers as described above, but also against health care practitioners for claims related to dissemination of risk information to patients beyond what is included in the labeling. (See, e.g., Bowman v. Songer, 820 P.2d 1110 (Col. 1991).)"

Ford Escort Seat Back Defect Verdict for Plaintiff Affirmed

The Eastern Section of the Tennnessee Court of Appeals has affirmed a jury verdict for the plaintiff in a case involving the design of a seat back in a Ford Escort. The case is Potter v. Ford Motor Co., No. E2005-01578-COA-R3-CV; it was decided on June 21, 2006. The opinion was authored by Judge Sharon Lee.

Ford argued that "to establish a prima facie case, the plaintiff must prove 'the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff's harm." The Court disagreed, saying that no Tennessee state court had ever stated that Tennessee law placed that burden on a plaintiff. Judge Franks concurring, stating that while he agreed that what Ford said should be the law it was not the law of Tennessee.

[As I read the excerpts of the testimony of one of the plaintiff's experts, the plaintiff introduced testimony that the plaintiff would not have been catastrophically injured if the Escort had been equipped with a belt integrated seat.]

Ford also argued that the trial judge erronously refused to instruct the jury on intervening cause, stating that the jury should have been told that a plaintiff's conduct can be an intervening cause. Once again, the Court disagreed, saying "Ford has not cited any Tennessee case holding the plaintiff's own negligent conduct to be an intervening, superseding cause, thereby cutting off his or her recovery, nor has our research revealed such a case." Judge Lee and her colleagues went on to say that "applying the bar of intervening, superseding cause to a plaintiff's negligent conduct would mark a return to the "all-or-nothing proposition" rejected in [Perez v.] McConkey. It is simply an unnecessary analysis when a much more refined and better legal tool - comparative negligence and comparative fault - is now available."

Finally, Ford argued that the jury verdict form and instructions regarding enhanced injury was in error. The Court held that the trial judge properly followed the law as articulated in another Ford Escort case, Cruze v. Ford Motor Co., No. 03A01-9907-CV-00245, 1999 WL 1206798 (Tenn. Ct. App. E.S., Dec. 16, 1999).

Judge Lee's opinion is here. Judge Frank's concurring opinion is here.

Products Liability Case Preempted

The Court of Appeals for the Second Circuit has ruled that a products liability claim against a catheter manufacturer are preempted. More specifically, the Court held that "tort claims that allege liability as to a PMA-approved medical device, notwithstanding that device's adherence to the standards upon which it obtained premarket approval from the FDA, are preempted by Section 360(k)(a)" of the 1976 Medical Device Amendments to the Food, Drug, and Cosmetic Act.

Accordingly, the Court dismissed the claim so far as it alleged "strict liability, breach of implied warranty, and negligent design, testing, inspection, distribution, labeling, marketing, and sale claims as to the Evergreen Balloon Catheter, a PMA-approved medical device." The claim of negligent manufacturing was found not to be preempted, but it was dismissed on summary judgment because of the absence of a dispute as to material facts.

This is an interesting statement: "We note that our preemption analysis is quite limited in scope, affecting the small universe of cases resting on claims alleging liability despite a PMA-approved device's adherence to the standards upon which it secured FDA premarket approval. We take care to explain that we do not hold that all state tort claims as to PMA-approved devices are preempted. Thus, tort claims that are based on a manufacturer's departure from the standards set forth in the device's approved PMA application - such as the Riegels' negligent manufacturing claim - are not preempted."

Judge Pooler's dissent begins on page 41 of the opinion.

The case is Reigel v. Medtronic, Docket No. 04-0412-cv (May 16, 2006). Read the opinion by going here and searching for the name or number of the case. This case will find its way to the United States Supreme Court.

Read this opinion before accepting representation of a plaintiff in a medical device products case.

Products Liability Cases Decreasing

The number of products liability lawsuits filed in federal courts is declining.

According to an article posted at, the number of federal products liability lawsuits declined by 14% last year and are on pace to decline 16% this year. Read the article here.

The study itself may be found at; the report is here. Tennessee is a "third-tier" state in products liability filings in federal court, with between 1000 and 5000 filings over the 50 months ending 3/1/06.

This made me start thinking about the so-called litigation explosion and what proof there is of it in the federal courts in Middle Tennessee. So, I went to and discovered that civil filings are down in Tennessee, from 2198 in 2001 to 1729 in 2005. That is a decrease of 21.3%. See the data here.

There were 81 "Personal Injury / Product Liability" lawsuits filed in the Middle District of Tennessee in 2005; there were 93 such lawsuits filed in 2001. (See 2001 data here.)


Not quite.

Jet Ski Verdict Upheld

I love to ride a jet ski. In fact, I have had a Yahama Waverunner since 1999 and my beautiful wife just bought me the Mac- Daddy Seadoo (which will go 80 MPH and will rock your world).

So it was with more than my usual "I-love-torts-so-I-will-read-dang-near-court-opinion-on-the-subject" attitude that I picked up the opinion in Ford v. Polaris Industries, Inc., A106375 (Cal. App. 4th Div. 4 May 18, 2006). The facts: "Susan Ford sustained severe orifice injuries after falling off the rear of a twoseater Polaris personal watercraft. The jet-powered nozzle propelled a high-pressure stream of water that tore apart her internal organs. Today she uses a colostomy bag, urinates through a catheter, and her lower right torso and leg are numb from nerve damage. Susan and her husband sued the manufacturer and distributor of the watercraft on a strict products liability theory."


The issues: (1)"whether the doctrine of primary assumption of risk applies to the manufacturer of the personal watercraft so as to preclude the injured jet skier from raising a defective design claim;" and (2) the "propriety of instructions in a strict products liability case where the plaintiff alleges that the personal watercraft was defectively designed and caused her injury."

The holding: verdict for the plaintiff affirmed.

This opinion does a nice job discussing the law of primary assumption of risk. Read it here.

Vioxx - What Merck Should Do Now.

An analysis by Forbes.

The title says it all: "Merck's got to keep fighting."

Smoke Detectors

What happens when your smoke detector fails to work?

Plaintiffs bought two smoke detectors for their home. According to The Business Review, "The detectors at issue were ionization type smoke detectors that sense high temperature, fast moving fires, as opposed to detectors employing photoelectric cells which are better at detecting smoldering fires, like the one which apparently killed" two members of the the plaintiffs' family. "A photoelectric smoke detector would detect the smoke from a fire 15 minutes earlier than the ionization type ..."

"During the trial the jury heard from witnesses who testified that the company was aware of the shortcomings of the ionization only detector but continued to market the product instead of selling only dual detectors. The dual detectors cost from $20 to $25 while the ionization only types sell for $10 to $15."

The jury found for the plaintiffs and awarded damages of over $7,000,000. Read more here.

The State of the Vioxx Litigation

Here is probably the best article I have read about the status of Vioxx litigation after the New Jersey verdicts.

Lanier v. Merck, Round 2, Post 22

The New Jersey jury awarded $9.0 Million in punitive damages.

Perfect. Within the range of reason. Merck will suffer the sting of the shilling but not be able to argue that it took a head shot. Recall that punitives were capped at $22.5M.

Nice work.

BIG NEWS: Under New Jersey law when a plaintiff receives a punitive damage award the judge must refer the case to the prosecutor's office for an investigation to determine if criminal charges are warranted.

The statute: 2A:15-5.17. Record referred for criminal investigation. Upon the conclusion of any action in which punitive damages have been awarded, the court shall refer the record of that action to the prosecutor of the county in which the case was tried and to the Attorney General for investigation as to whether a criminal act has been committed by the defendant.

Lanier v. Merck, Round 2, Post 21

The jury has punitive damages under consideration. Read more here.

Lanier v. Merck, Round 2, Post 20

The New Jersey trial judge is going to let the jury decide the punitive damages issue. The arguments on punitives will be heard on Monday.

Read more here.

Lanier v. Merck, Round 2, Post 19

Now, the punitive damage phase. Read here.

Lanier v. Merck, Round 2, Post 18

The jury returned a verdict in the New Jersey Vioxx trial yesterday afternoon.

The jury found that Merck had failed to warn the men about the risks of heart attack and stroke associated with Vioxx but found a causal link between the drug and a heart attack for only one plaintiff.

McDarby, who said he used the drug for four years, was awarded $3.0 million. His wife was awarded $1.5 million.

Cona, who said he used the drug for 22 months (the extent of his use was severely challenged), received no compensatory damages because the jury did not find the causal link between the use of Vioxx and his heart attack.

The jury also found that Merck engaged in consumer fraud and awarded each man the cost he paid for his medications.

Mark Lanier represented Cona, the man who lost the causation argument but who won $45 for the amount he paid for Vioxx. (Cona argued that he received most of his Vioxx in the form of free samples. Either the jury did not believe him or believed that his heart attack was caused the one or more of his risk factors.)

The jury returns today to hear proof about the claim for punitive damages.

Read more here.

My thoughts:

1. This verdict is extremely bad news for Merck. Merck was playing on its home court (it is based in New Jersey) and a home court loss sends a terrible message to the rest of the country.

2. Worse yet for Merck, the verdict demonstrates that that a jury can sort through the facts of the causation testimony of at least two plaintiffs and reach different results on each. Recall that Merck argued that a jury would get confused if two cases were tried at the same time. If both plaintiffs had won Merck would have argued that the jury was confused and there should be no consolidated trials in the future. If both plaintiffs had lost Merck would have argued the the jury was brilliant but that trials should not be consolidated in the future because the risk of confusion was too great. The split verdict on causation shows that the jury was able to consider the evidence on causation for the two men seperately and, apparently, rationally. Look for more trials with multiple plaintiffs. In fact, look for trials with three or four plaintiffs (maybe more) in New Jersey state court.

3. The compensatory damages award appears within the range of reason. McDarby suffered not only a heart attack but also a received a broken hip when he fell. He is in a wheelchair. The apparent reasonableness of the award is bad for Merck in the court of public opinion.

4. The finding of consumer fraud is extremely significant. Under the New Jersey Consumer Fraud Act, "the act, use or employment by any person of any unconscionable commercial practice, deception or fraud, false pretense, false promise or misrepresentation, or the knowing concealment, suppression or omission of any material fact with the intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise . . . is declared to be an unlawful practice..." Treble damages, attorneys' fees and costs are recoverable damages. First, the fact of the finding is horrible for Merck from a customer relations standpoint. Perhaps more important, however, is that there is a class action pending against Merck on this very subject seeking a recovery of the prescription price of the drug for every buyer in America (and perhaps beyond). The damages in that case are over $10 billion. The intermediate court of appeals in New Jersey recently upheld class certification in that case (read my post here). Question: is offensive collateral estoppel available to the class action participants because of the jury's finding in this case? I do not know what New Jersey law is on this subject, but if collateral estopple does apply Merck is going to be in a very tough situation. Sure, it can appeal this verdict and drag things out a few years. But if the verdict is affirmed it will take a huge hit in the class action.

5. Once again, the possibility of recovery of attorneys' fee is very significant, not only in the class action but in every other case. Why? Until the class action is resolved (and even after it is resolve, if the consumer opts out of the settlement) a personal injury or wrongful death plaintiff can include a claim for violation of a consumer protection act and may be able to recover expenses and fees even if the case is later lost on causation. And don't forget about trebling....

5. The punitive damage phase could prove troublesome to Merck, too. Punitive damages in New Jersey are capped at five times the punitive damages award. In McDarby, punitives would be capped at $22.5 million. That is certainly not chump change, but nor is it so outrageous (like the result in Texas) that Merck will get postive PR out of a loss on this issue.

6. These cases will continue to be defended on a case-by-case basis for the time-being. It appears that juries will need solid proof on actual consumption of the drug (they won't just take the plaintiff's word for it - there better be some documentation that the medication was actually received by the plaintiff, by free samples or purchase)- and that consumers who took the drug for longer periods of time are better plaintiffs than those who took it for a shorter period of time. That is of no particular surprise to almost anyone who has followed this controversy. Click here for a timeline of relevant events to date.

7. I do not forsee any settlements in these cases for months, perhaps a year or more. Even the cases with documented use for 18 or more months will not be settled because Merck has to hope that they get a few victories that will bring the value of those cases down. (Of course, a string of losses in cases with 18 more months of documented use will bring values up - but at least publicly Merck seems to be saying "Thank you, sir, may I have another?" Look for the trial judge in New Jersey to push more cases to trial - recall that she set four or five groups of cases for trial this year and that all of the cases were long-term consumption cases.

8. Plaintiffs lawyers should not get overly excited by this result and start filing a bunch of short-term use cases. No short-term use case has been won. The next of those cases will probably be tried in New Orleans which is probably not a favorable venue in the short-term.

Lanier v. Merck, Round 2, Post 17

The New Jersey Vioxx case is to the jury - the defense did its closing argument yesterday.

Also, here is an interesting article about jury questions in the Vioxx case.

Lead Paint

Litigation against paint manufacturers for using lead in paint has been underway for years and the industry has always won.

Until now.

Here is a fascinating story about lead paint litigation in Rhode Island and the recent jury verdict for the State of Rhode Island after more than five months of trial. It includes juror interviews.

A paint trial will be held in Milwaukee early next year.

Lanier v. Merck, Round 2, Post 17

Closing arguments were Friday - here is an update.

In other Vioxx-related news, the Apellate Division of the New Jersey Court has upheld class certification of a class action seeks to permit health insurers and consumers to recover monies they paid for Vioxx. Read the opinion here.

One big fight in the class action concerns whether New Jersey law should apply to the nationwide class. Here is a brief excerpt of what the court says on that issue: "New Jersey's contacts with this dispute are both extensive and weighty. Besides having the plaintiff class representative organized and operating in New Jersey, Merck is a New Jersey corporation with its corporate home located in this state. Vioxx was primarily developed in New Jersey. Scientific research, studies, and presentations relating to the safety of Vioxx and its clinical studies were conducted in this State. The ultimate decision-making power regarding Vioxx's marketing and development was exercised in New Jersey.

The fraud allegedly was conceived of and executed from New Jersey. Merck's senior-level committee in charge of overseeing the "broad development of [its] products," including Vioxx, and providing "a final sign-off on plans and activities related to the product," met in New Jersey. This group is allegedly connected to deliberate suppression and/or misrepresentation of damaging information concerning Vioxx. In addition, a board of scientific advisors expressed its concerns to Merck in New Jersey. Manipulation of clinical studies allegedly took place in New Jersey as well. It was this manipulation that aimed to spur sales of the drug and, in part, hide its risks. Thus, the claimed misrepresentations and omissions in the marketing and advertising of the drug all emanated largely from New Jersey."

The court applied New Jersey law to the case.

Lanier v. Merck, Round 2, Post 16

The defense in the New Jersey Vioxx case has rested. Read more here.

Lanier v. Merck, Round 2, Post 15

The end is near in the New Jersey Vioxx trial. Here is the latest.

Lanier v. Merck, Round 2, Post 14

More proof from the defense in the New Jersey Vioxx trial; read about it here.

The next federal Vioxx trial begins June 12, 2006.

Lanier v. Merck, Round 2, Post 13

The trial of the Vioxx cases in New Jersey is winding down. Here is a recent update.

Lanier v. Merck, Round 2, Post 12

The defense starts it case in the New Jersey Vioxx trial. The trial is expected to be over next week.

Lanier v. Merck, Round 2, Post 11

Motion for directed verdict denied. Merck has now begun to offer its defense to the two Vioxx cases consolidated for trial in New Jersey. Read more here.

Meanwhile, the California Vioxx cases are heating up. Learn more here.

SCOTUS Denies Cert in Punitive Damages Case

The Supreme Court denied cert in a cigarette case yesterday, letting a $50,000,000 punitive damages award stand against Phillip Morris. The compensatory damages in the case were $5,500,000.

This will be an encouragement to the plaintiff in the Oregon tobacco case; recall that the Oregon Supreme Court affirmed a $79.5 million punitive damage verdict for that plaintiff recently.

Read more here.

Lanier v. Merck, Round 2, Post 10

The news from the New Jersey Vioxx trials.

Lanier v. Merck, Round 2, Post 9

The plaintiffs are wrapping up their case in New Jersey. Here is a report of the events of last Friday.

Lanier v. Merck, Round 2, Post 9

Thursday's developments from New Jersey.

And, on a related topic, the federal judge overseeing the Vioxx MDL has ordered the deposition of the FDA scientist who blew the whistle on Vioxx. Read more here.

Lanier v. Merck, Round 2, Post 8

Here is the latest on the Vioxx trial - with two plaintiffs - currently underway in New Jersey. Recall that this is the case where each plaintiff claims more than 18 months of use of the drug, a critical factor in the minds of all concerned.

Lanier v. Merck, Round 2, Post 7

Here is the latest.

Lanier v. Merck, Round 2, Post 6

Here is a summary of events from Friday in the two Vioxx cases being tried (together) against Merck in state court in New Jersey.

Lanier v. Merck, Round 2, Post 5

Thursday's action in the New Jersey cases currently being tried against Merck.

Lanier v. Merck, Round 2, Post 4

You know the drill by now - here is an article reflecting what happened yesterday.

An excerpt: "They also got to watch a movie: ''V Squad," a campy, 12-minute sales-training video played in court, which showed two Merck salespeople dressed as superheroes -- each in a black suit, with an orange ''V" on the chest -- fending off human ''obstacles" who represented questions from doctors to whom the company pitched its blockbuster arthritis drug."

Lanier v. Merck, Round 2, Post 3

Here is an article that describes the events of the second trial day (after the completion of jury selection) in the two Vioxx trials currently underway in state court in New Jersey.

Lanier v. Merck, Round 2, Post 2

Here is a summary of the opening statements in the Vioxx trial currently underway in New Jersey.

More on Vioxx Study

Here is the latest on the Vioxx research controversy between certain certain scientists and the New England Journal of Medicine.

Tobacco Decision Out of Oregon

You may hate tobacco lawsuits and lawyers who bring them. But you cannot help but agree that the tobacco industry is absolutely despicable. How the executives of the industry who lied to the country and the government for years can sleep is beyond me.

There are lots of people who agree, one group of them being the Supreme Court of the State of Oregon. This opinion affirms a significant punitive damage verdict against Phillip Morris.

Some excerpts:

"Again, we construe all facts in favor of plaintiff, the party in whose favor the jury ruled. Doing so, there can be no dispute that Philip Morris's conduct was extraordinarily reprehensible. Philip Morris knew that smoking caused serious and sometimes fatal disease, but it nevertheless spread false or misleading information to suggest to the public that doubts remained about that issue. It deliberately did so to keep smokers smoking, knowing that it was putting the smokers' health and lives at risk, and it continued to do so for nearly half a century.

Philip Morris's fraudulent scheme would have kept many Oregonians smoking past the point when they would otherwise have quit. Some of those smokers would eventually become ill; some would die. Philip Morris's deceit thus would, naturally and inevitably, lead to significant injury or death.

Although it weighs less in our analysis, we also note that Philip Morris harmed a much broader class of Oregonians. Every smoker tricked by its scheme, even those who never got ill, kept buying cigarettes -- taking money out of their pockets and putting it into the hands of Philip Morris and other tobacco companies. And every one of those smokers risked serious illness or death for as long as they remained deceived."

There is more: "In essence, Philip Morris is claiming that one cannot reasonably infer that anyone was actually fooled by its 40-year advertising campaign directed to thousands of Oregonians. Yet even the simplest assessment of human nature, viewed in light of the designedly addictive properties of cigarettes, tells any reasonable person that those lies would have been very persuasive. We think that such an appreciation of human nature fairly may be attributed to jurors, including the ones who heard this case. Moreover, Philip Morris's own conduct belies its protestations. As a for-profit corporation, it would not spend over 40 years of time, effort, and money to deceive people, unless it thought it was succeeding."

A nice way to end: "In summary, Philip Morris, with others, engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and many others, even when Philip Morris always had reason to suspect -- and for two or more decades absolutely knew -- that the scheme was damaging the health of a very large group of Oregonians -- the smoking public -- and was killing a number of that group. Under such extreme and outrageous circumstances, we conclude that the jury's $79.5 million punitive damage award against Philip Morris comported with due process, as we understand that standard to relate to punitive damage awards. It follows that the Court of Appeals correctly held that the trial court should have entered judgment against Philip Morris for the full amount of the jury's punitive damage award."

Post-judgment interest on the verdict exceeds $47,000,000.

Obviously, the USSC will have the opportunity to hear this case. However, for the time being, if you are trying to uphold a punitive damage verdict under State Farm v. Campbell you need to read this opinion.

Plaintiff Loses Retrial of Federal Court Vioxx Trial

The jury returned a verdict for the defendant today in the retrial of the first federal court Vioxx trial.

A mistrial was declared the first time the case was tried. This time a New Orleans jury went for the defendant.

The lawyer for the plaintiff said that "the biggest problem was Judge Eldon Fallon's ruling, shortly before the trial, that two of their experts -- a cardiologist and a pathologist -- could not testify that Vioxx was to blame for Irvin's heart attack. They were experts in their fields, but not about Vioxx, the judge ruled."

Read an article about the jury verdict here.

Note that the defense lawyer praised the jury's decision. Have you ever noticed that corporate America loves juries when they rule for the defendant but rail against them when they rule for a plaintiff?

Rollover Cases

Are you looking at a rollover case? ATLA has information that will help.

For example, the ATLA link says that "[n]ow public General Motors internal documents show that the auto industry knew as early as 1966 that their roof design was so weak that in rollover accidents it crushed occupants to death. They could have fixed this defect for as little as $43.13."

There is more information about rollover cases here.

Read information available at the Public Citizen site to learn about the inadequacies of the new rollover standards and issues related to the failure of saftey belts in the rollovers. This link will give you information about the efforts of Ford to keep the rollover problem out of the public eye.

Thanks to Bill at the Chicago Personal Injury Law Blog for reminding me about the information from ATLA.

Two Vioxx Trials Underway -UPDATED

This news article informs us that a jury was seated in the re-trial of the federal court case mis-tried several months ago. The last trial of the case took place in Houston; this trial is in New Orleans. Here is an article about the events of the first day.

How will the actions of the New England Journal of Medicine impact the trial? That issue is dicussed in this article.

There is another trial under way in the Rio Grande Vally - this one is in state court.

New Punitive Damage Decision From 6th Circuit

The 6th Circuit Court of Appeals has cut a punitive damage award in a products liability case. A jury determined that the defendant produced a defective product that caused the death of the occupant of it. The jury awarded, and the trial judge affirmed, a $3,000,000 punitive damage award.

The appellate court cut the punitive damage award to $471K (200% of the compensatory damage award) and summarized its reasons for doing so as follows: "an application of the Gore guideposts to the facts of this case reveals that (1) Chrysler's misconduct does not constitute a high degree of reprehensibility, (2) the ratio of punitive to compensatory awards is unjustifiably large, and (3) a wide gap exists between the punitive damage award and comparable civil penalties. The fact of Mr. Clark's death does not outweigh all."

Judge Moore dissented, saying "Chrysler's conduct was reprehensible, the ratio between the punitive and compensatory damages awards was neither breathtaking nor otherwise unreasonable given the circumstances of the case, and the punitive damages award was in line with comparable civil penalties ...."

Read the decision here.

Defense of Vioxx Cases

Here is a good article from the Washington Post that summarizes where we are and what lies ahead in Vioxx litigation.

Hyundai Hit With Default Judgment

A Washington state court judge has entered a default judgment against Hyundai for failure to give accurate information concerning past claims.

Read more here.

Why Do I Get Upset Over Things Like This?

You would think that I would react differently.

After all, I am 49 years old. I have practiced law for over 24 years. I paid my way to college and law school mowing lawns, delivering newspapers, and sacking groceries. I supplemented those earnings with work as a meat cutter, a dishwasher, and a bartender. I actually managed a bar for my two years of college; I hired and tried to keep a staff of some 25 bartenders. I worked as the owner's representative for a real estate developer on a construction site for one summer, and worked for a mobile home manufacturer for two summers. In those jobs I interacted with people in every walk of life in a wide variety of situations.

I have seen a lot of wonderful things and a lot horrible things in my law practice.

And in between all of that I have done a whole lot of living.

So why am I outraged that Ford Motor Company would tell the world about how safe its Volvo line of cars are on television ads but distance itself from Volvo when defending products liability suits? Why does that still shock me?

FDA and Pre-emption

I wrote a post the other day about the efforts by the FDA to limit lawsuits by consumers injured by drugs.

Here is an update.

Jury Verdict Reversed in Sudden Acceleration Case

The Missouri Court of Appeals has reversed a jury verdict entered in favor of a brain damaged woman and her husband. The two argued a 1993 Cutlass had a defective cruise control which caused a wreck that injured the woman.

The appellate court held that the trial judge should not have permitted 139 prior incident into evidence because they were not sufficiently similar to the accident at issue. The court also ruled that punitive damages were not appropriate in the case. (Under Missouri law, "punitive damages are appropriate, therefore, only when the defendant's conduct is outrageous due to evil motive or reckless indifference to the rights of others, which must be proven by clear and convincing evidence".)

Importantly, however, the appellate court did hold that the plaintiffs presented "evidence that Mrs. Peter's accident was not "an operator created incident," that the cruise control mechanism located on the Peters' vehicle was defectively designed and dangerous; that a single transient fault actuated the throttle of the vehicle and caused the accident; that the vehicle accelerated from the tree to the planter after Mrs. Peters was unconscious and, therefore, was unable to press the accelerator with her foot; that General Motors engineers became concerned in the late 1980s that the cruise control system might cause sudden unwanted acceleration and recommended that General Motors install another type of system; and that General Motors had never warned customers about the defective nature of the cruise control system, the evidence was sufficient to make a submissible case of strict liability -- design defect, strict liability -- failure to warn, and negligence."

Read the entire opinion (and dissent) here.

More Bad News for Guidant

People with injury claims against Guidant are learning more and more about how the company did business - and the news for Guidant is not good.

This article reveals that a former employee is talking and says that the company set "unrealistic" goals for production of pacemakers and defibrillators.

Clinical Trials: Are We Getting the Data We Need?

The New England Journal of Medicine is hardly a tool of the plaintiffs' bar. So when the Journal criticizes the lack of complete disclosures in reports concerning clinical trials people should stand up and take notice.

The editor of the Journal says that some companies "are meeting the letter but not the spirit of the law." Read the study of the compliance rate of drug manufacturers with the federal law that governs clinical trials here.

Here is an editorial written by the Journal staff on the subject. An excerpt: "In our opinion, it is unacceptable for a trial sponsor not to register its trial in a complete, meaningful, and timely fashion. We call for all clinical investigators and patients to participate only in fully registered trials."

There is another editorial on the subject as well; read it here. Here is a sample of it: "The ultimate goal should be to make trial protocols publicly available in their entirety, including any financial arrangements and agreements with regard to publication, so that patients can be sure that the results will become available. At the same time, it is the responsibility of those who set the rules and establish the registries to make them practical to use and understandable for all kinds of research groups, both small and large."

Anti-Consumer Vaccine Legislation Passes

The President will sign a budget bill containing a provision for immunity for manufacturers of certain vaccines. I cannot track down the legislation itself but here is an ATLA summary of it:

"The liability provisions allow the Secretary of HHS to declare that a drug, device, or vaccine is a covered countermeasure for a pandemic, epidemic, or potential public health emergency. Once a product is covered, the manufacturer is provided immunity for even reckless misconduct. The bill does not even provide a compensation fund for injured patients. Instead it established a compensation process, but appropriates no funding to provide compensation for those who are injured."

Mistried Federal Vioxx Trial Re-Set

The federal Vioxx case that was mistried earlier this month has been set for a second trial on February 6, 2006.

Read more here.

Federal Vioxx Trial

One juror says that the jury was split 8-1 in the first federal Vioxx trial - for the defendant. Read more here.

Tazer Litigation

Deaths caused by Tazers have been in the news in Nashville lately, and a products trial concerning the device has started in Arizona.

According to the article some 35 claims are pending against the company.

Read more here.

Vioxx Trial - Wrap Up

Here is an article that wraps up the first federal court Vioxx trial. The case will be re-tried in a few months.

Vioxx Jury - Mistrial

The judge declared a mistrial in the Vioxx case this morning. The jury was unable to reach a verdict.

Vioxx Jury

The Vioxx jury in Houston resumes deliberatons today.

Federal Court Merck Jury Still Deliberating

The jury comes back Monday for a fourth day of deliberations in the first federal MDL Vioxx trial. The jury was given a dynamite or Allen charge on Saturday.

Read more here.

Federal Court Vioxx Jury is Deliberating Today (Saturday)

The Vioxx jury is working on Saturday. Read about it here.

For reaction of some lawyers to the latest news concerning the NEJM story, go here.

Honda and Its Expert EXPOSED

Honda and its expert, Robert Gratzinger, got caught "wrongfully and intentionally alter[ing] the most significant physical evidence in [a products liability case." The judge sanctioned them, but then sealed the order as part of a settlement of the case.

Trial Lawyers for Public Justice found to open the record to the public eye (read the motion here)and finally succeeded. Here is how it puts the describes the matter: "The court found that by intentionally destroying marks showing that Davis had been wearing a seat belt at the time of the accident - the 'single most critical issue' in the case - Honda had 'attempted to rob' the plaintiff 'of her right to litigate on a level playing field.' As a sanction, the court held Honda liable for Davis's injuries and ruled the jury would only decide how much in damages Honda paid Davis." Read the entire press release here.

Here is a copy of the now unsealed order.

I don't know if the judge called this one right or not. Obviously, I did not see or hear the witnesses testify. But when one reads the Order it is obvious that he took his obligations very seriously. And if the facts are right, the sanction was appropriate.

I wonder if the lawyer was ever disciplined.

Did Merck Hide Data? UPDATED X 2

The New England Journal of Medicine, hardly a tool of the plaintiff's bar, has concerns that Merck not only played dodgeball but actually hid the ball. AP puts it this way: "Vioxx maker Merck & Co. concealed heart attacks suffered by three patients during a clinical study of the now-withdrawn painkiller in a report on the study published in the New England Journal of Medicine in 2000, the journal wrote in an editorial released Thursday."

The editorial said this: "Taken together, these inaccuracies and deletions call into question the integrity of the data on adverse cardiovascular events in th[e earlier] article." And this: "Excluding the three heart attacks "made certain calculations and conclusions in the article incorrect," the doctors wrote, adding that they have asked the report's authors to submit a correction to the journal.

A federal court jury is deliberating the third Vioxx case as this post is being written.

According to Forbes, "editors at the world's top medical journal found by examining a computer diskette that relevant data about Vioxx's risk to the heart compared with an older pain drug, naproxen, were deleted two days before the paper was initially submitted."

Merck's shares have dropped almost 3% in after-hours trading.

More to come .....


Go here to read Merck's response.


Forbes has the best article I have read so far. Here it is.

Vioxx Trial - Defense Rests in MDL

The judge wanted it done quick - and the defense rested after just a few days of testimony. Read more here.

The article says that the jury is expected to get the case by mid-day tomorrow (Thursday).

Vioxx Trial - First MDL Trial

Here is the latest news on the first federal MDL trial currently underway in Houston.

The judge wants this case over quickly; the plaintiffs put on their case in less than five days and the defense has already called several witnesses. Here is a summary of a key witness for the plaintiff who was not called in the two prior trials.

Doctor on the Ropes

By now everyone has heard of the troubles for Dr. Ray Harron, the radiologist who read as many as 150 x-rays a day at $125 each, the results of which efforts were used as support of the claim of 75,000 asbestos claimants. As this article from today's NYT demonstrates, the defense lawyers are going after him. It doesn't take a rocket scientist to see what is going to happen next.

Aren't you glad you did not use this gentleman as an expert? Don't you know that there are dozens and dozens of lawyers who are sitting in their offices right now wondering when the process server will show up with a subpeona and a deposition notice? Or worse?

I hope that Dr. Harron is clean. If he is not, I hope that the lawyers who employed him did not know he was not.

Because if he was not and if the lawyers knew he was not, it is going to get ugly.

Federal Judge Allows Experts To Testify in Short-Term Vioxx Case

The federal judge heading up the Vioxx MDL will permit the plaintiffs to call expert witnesses to prove that short-term use of Vioxx can cause cardiac problems.

Read about the ruling and other Vioxx news here.

This One Will Give You Peace of Mind

Ok, I have lived long enough to have some idea how the world works. I do not pretend to understand how the world works, mind you, I just have some idea how it works.

I knew that it was not by happenstance that drug reps tended to be attractive women (and men). But it never came to my mind that the drug companies would be actively recruiting cheerleaders to sell drugs. Read this story from the New York Times.

I love this quote: "T. Lynn Williamson, [a] cheering adviser at Kentucky, says he regularly gets calls from recruiters looking for talent, mainly from pharmaceutical companies. ... 'They don't ask what the major is,' Mr. Williamson said. Proven cheerleading skills suffice. 'Exaggerated motions, exaggerated smiles, exaggerated enthusiasm - they learn those things, and they can get people to do what they want.'"

Exaggerated motions, exaggerated smiles, exaggerated enthusiam, exaggerated statements about the safety of drugs ....

Vioxx Cases Moving Forward in New Jersey

Fresh off the heels of a recent loss, Chris Seeger and his team are gearing up for more Vioxx cases state court in New Jersey. The judge has decided that one of seven cases will be tried starting January 30, 2006. Each of the cases are on behalf of a person who took Vioxx 18 months or longer; one of the people died.

Cases in which the plaintiff took Vioxx for 18 months or longer are expected to be more difficult for the defense to try.

The next New Jersey case will begin March 27, 2006.

Read more here.

Mass Tort Follow-Up

Regular readers will remember that several weeks ago I wrote about the opinion by Judge Jack in a group of silicosis cases pending in Texas.

At the time I wrote "this story will not and should not die." Well, it has not died. The business community has grabbed this bull by the horns and intends to ride it until it is dead, buried, and fully decomposed. For but one example, read this story in Business Week Online.

Here is a quote from the article: "Expensive investigations into the legitimacy of medical diagnoses, which led to the Jack opinion in In Re: Silica Products Liability Litigation, are just the beginning. Corporate complaints about mass tort fraud have spurred criminal convictions, ongoing criminal probes in three states, and an inquiry by the House Energy & Commerce Committee. The U.S. Chamber of Commerce has also begun building a database that will be used to identify relationships among screening companies, doctors, plaintiffs' law firms, and claimants, and keep an eye out for repeat plaintiffs. 'We are at a turning point,' says Lisa A. Rickard, president of the Chamber's Institute for Legal Reform. 'The business model that the plaintiff bar has been using in mass torts is now coming into question and under scrutiny not only by judges but by prosecutors.'"

Vioxx Cases - First Federal Trial

It is 1 to 1 and we now move to federal court for round 3 in the Vioxx wars. The first federal trial is in Houston, where Jere Beasley from Alabama will serve as lead counsel for the plaintiffs and Phil Beck from Chicago will serve as lead counsel for the defendants.

The trial starts November 29, 2005. Read more here.

The federal trial was orginally set for trial in New Orleans but had to be moved because of Katrina.

Vioxx Case Has Gone to the Jury

The jury in the NJ Vioxx case retired for deliberations at short time ago (it is now 2:35 CDT). Here is a summary of Chris' closing argument.

New Jersey Vioxx Trial - Update

Apparently only the defendant closed yesterday. The plaintiff's lawyer, Chris Seeger, is closing today. Comments like the ones in the article have put a lot of pressure on Chris. I wish him the best.

New Decision on Opinion Evidence

The Tennessee Supreme Court has decided Brown v. Crown Equipment Co., a case that asked the Court to give us a further understanding of the McDaniel opinion on expert testimony that it released a few years ago. Brown involves an injury related to a forklift; the trial judge excluded two of the experts offered by the plaintiff and directed a verdict in favor of the defendant. The Court of Appeals affirmed.

The Tennessee Supreme Court reversed and remanded for trial. The Court said:

"In McDaniel, we listed several nonexclusive factors that courts could consider in determining the reliability of scientific testimony, including

(1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether . . . the evidence is generally accepted in the scientific community; and (5) whether the expert's research in the field has been conducted independent of litigation."

However, the Court went on to say that:

"We continue to emphasize, however, that these factors are non-exclusive and that a trial court need not consider all of these factors in making a reliability determination. Rather, the trial court enjoys the same latitude in determining how to test the reliability of an expert as the trial court possesses in deciding whether the expert's relevant testimony is reliable. Kumho Tire Co., 526 U.S. at 152. The objective of the trial court's gatekeeping function is to ensure that "an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. Furthermore, upon admission, expert testimony will be subject to vigorous cross-examination and countervailing proof. Stevens, 78 S.W.3d at 835; McDaniel, 955 S.W.2d at 265. The weight of the theories and the resolution of legitimate but competing expert opinions are matters entrusted to the trier of fact. See McDaniel, 955 S.W.2d at 265."

Continue Reading...

Status of the New Jersey Vioxx Case

Closing arguments are today - read this article from Bloomberg for the latest summary of recent events and thoughts of other lawyers about the case.

Vioxx Trial At End

Closing arguments in the New Jersey Vioxx trial are expected to begin on Monday, according to news reports. The lawyers are working with the trial judge on jury instructions today. The trial has lasted seven weeks.

Predictably, there has not been as much press about this case as the one in Texas, although that will change next week. This case is a "must win" for Merck.

Vioxx Dream Team

A group of plaintiffs lawyers have formed a "dream team" to take on Merck in Vioxx litigation. Merck has said it will defend every case individually, but now a group of plaintiffs' lawyers has said they will band together and will press for a continuous trial schedule so that plaintiffs can get their cases heard. The cases will be heard in state court, outside the federal MDL. One leader of the group is Mark Lanier, lead counsel in the Texas case.

The group says they control some 20,000 cases, only 10% of which have been filed to date.

Products Liability Article

A recent edition of the journal of the Federation of Defense and Corporate Counsel article called "Handling Difficult Issues in Products Liability Actions: Subsequent Remedial Measures, Similar Accidents, Recalls, and Foreign Defendants." It is written by Bradley C. Nahrstadt.

The well-written article has a nice collection of cases from around the country on the stated topics. The author describes the article this way:

"The purpose of this article is to apprise defense counsel of three potentially fatal areas of pre-trial discovery and trial testimony in products liability actions - evidence of subsequent remedial measures, evidence of other accidents, and evidence of product recalls - and to provide suggestions regarding alternate ways to deal with such evidence. The final section of this article will discuss some interesting issues that often arise when defense counsel represents a foreign product manufacturer or distributor."

Ford Caught in Inconsistent Statements

Ford Motor Company apparently says one thing in the courtroom and another thing in press conferences.

This news article says that Ford's PR people keep saying that Ford did dynamic testing of its vehicles but that its witnesses at a recent trial said they did not. When asked to explain the discrepency, the Ford folks refused comment.

And now, of course, Ford is trying to seal the courtroom records.

It sort of reminds me about that story about how the lawyer prepped and re-prepped a witness for his testimony and the testimony was going to be "x". They even talked about it in the hall immediately before the witness went on the stand. The witness went in to the courtroom and said "z". Later, the lawyer asked him why he said "x" in the previous prep and in the hallway before testifying and then changed to "z" on the witness stand. The witness said: "I wasn't under oath in the hallway."

If I had one of these cases, I would depose the folks giving the press conferences and ask them the factual basis for their statements. My guess is that would lead to some great proof that could help give rise to a substantial punitive damage award.

Update - Vioxx Trial

Here is the latest on the New Jersey Vioxx trial.

My guess is that we will have a verdict next week.

New Spoliation Case

Bryant Flury alleged that he was injured when his air bag failed to open. He brought suit against the manufacturer of the truck he was driving at the time of the one vehicle accident. He won a $250,000 jury verdict.

The manufacturer appealed on several grounds, including that the subject vehicle was destroyed before the manufacturer had an opportunity to inspect it. The vehicle had been stored at Flury's home but State Farm, the vehicle's insurer, had taken the vehicle from the home and sold it for its salvage value.

The trial judge told the jury that if it found that the plaintiff was responsible for the loss of the vehicle a rebuttable presumption arose that the vehicle was not defective. The 11th Circuit reversed the verdict, saying that the loss of the vehicle was the sole fault of the plaintiff and that the only appropriate sanction was dismissal of the action.

You should know that the plaintiff's lawyer told the manufacturer about the incident but did not give them permission to inspect the vehicle. Also, the manufacturer was not told that the vehicle was going to be destroyed.

Bottom line: this is one of the strongest opinions I have seen on this subject. You can be sure that this opinion will be used by defendants in cases around the country. This opinion will also be used to argue that a case should be dismissed if the product is destroyed before the plaintiff got a lawyer.

If you get a products case secure the product! Do not allow any sort of destructive testing or other alteration of the product while it is under your watch. Instruct the people holding the vehicle not to alter it in any way. And if you are asked to take a products case where the product is already gone, reject the case unless you can come up with a rational argument that the absence of the product does not hurt the ability of the defendant to defend the case.

New Jersey Vioxx Trial - Update

The Plaintiffs' proof is about over, and the jury has been permitted to ask questions. To read about the current status of this important case, click here.

Ford Truck Roof Crush Verdict

A jury in South Texas returned a jury verdict against Ford yesterday.

A teenager died when the truck rolled over and the roof crushed. The truck was forced off the road by the actions of another driver. That driver was also apportioned fault in the incident. Ford was given 90% of the fault.

Plaintiffs introduced testing that demonstrated when the truck was dropped from a height of nine inches the roof crushed down to the headrest.

Ford said the vehicle complied with government safety standards.

Isn't that comforting?

Vioxx Trial Update

Here is the most recent news on the Vioxx trial currently underway in New Jersey.

The author clearly does not understand the law of directed verdict.

Medical Monitoring

When you can't prove a current injury but can prove that, because of the fault of another, you need to be regularly followed by a health care provider you seek damages for "medical monitoring." The claim arises is toxic tort and products liability cases.

In a case of first impression, the Sixth Circuit Court of Appeals has ruled that Tennessee law would recognize a cause of action for medical monitoring. The court said "there is something to be said for disease prevention, as opposed to disease treatment. Waiting for a plaintiff to suffer physical injury before allowing any redress whatsoever is both overly harsh and economically inefficient." (Emphasis supplied). The case, Sutton v. St. Jude Medical S.C., Inc., was brought as a class action on behalf of a proposed class of persons who underwent cardiac by[ass surgery using a medical device called the Symmetry Bypass System Connector.

Read more here.

Absence of Other Incidents

A defendant in a product liability case cannot introduce proof of the absence of other claims unless strict guidelines are met, according to the Third Circuit Court of Appeals.

The plaintiff's lawyer "argued that there was no foundation for such testimony because [defendant's] engineer had admitted in his deposition that [it] kept no records relating to either safety complaints by [its] customers or past accidents involving [the product involved in the incident]."

Judge Smith said "Most courts admitting evidence of the absence of prior accidents in product liability cases have done so only where the testifying witness, usually an employee of the product manufacturer, has testified that (a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (c) to the witness's knowledge, no such prior accidents have occurred." Judgment in favor of the defendant was reversed.

The opinion is Forrest v. Beloit Corp.. Click here to read a news report of the opinion. Read the opinion itself here.

Certain Minivans Don't Perform Well in Crash Testing

A recent article reports that certain minivans get a failing grade in crash tests designed to check likelihood of neck injuries in rear-end collisions.

"Earning poor overall ratings were seven models subjected to a simulated crash: versions of the 2004-2006 model years of the Dodge Grand Caravan and its corporate twin, the Chrysler Town & Country; a version of the 2005-2006 Toyota Sienna; and four General Motors Corp. minivans from the 2005-2006 model years - the Chevrolet Uplander, Buick Terraza, Pontiac Montana SV6 and Saturn Relay."

Vioxx Trial - New Jersey

Read this nice article about Chris Seeger, lead trial counsel in the New Jersey Vioxx trial. I have known Chris for 10 years or so - he is a great guy with a passion for what he does. He will give Merck one heck of a fight.

Vioxx Trial - New Jersey

You have got to read this:

An expert for the plaintiff referred to a series of emails from Merck, including a statement by a research that they should give clinical trial patients aspirin and Vioxx, knowing that aspirin would reduce the risk of blood clots. Without aspirin, the researcher apparently wrote, ''you will get more [dangerous blood clots] and kill drug.''

For another article, and Merck's spin on this statement, click here.

Of course, it is blood clots and their complications that went on to kill many Vioxx patients.

New Jersey Vioxx Trial

Vioxx vs Patients - Round 2. Venue: NJ

The trial is underway, and the defense has already violated the Judge's order not to attack the plaintiffs' lawyers. They spent alot of time attacking Mark Lanier in round one, and it worked so well there I guess they thought they should try it again.

This has become a tactic of some defense lawyers in recent history. Seizing on the dislike of lawyers, some defense lawyers wrap themselves up in the corporate (or doctor) flag and try the lawyers rather than (or in addition to) trying the case. It happened to me in a trial in December.

The Judge in New Jersey ordered the defense not to do it. They are doing it anyway, maybe hoping to get that continuance (via a mistrial) that the Judge would not give them.

If the defense does not obey the Judge's order in the future, the Judge should heavily sanction the disobeying lawyers, including ordering them out of out the courtroom for the duration of the trial and holding a contempt hearing after the trial. There is no excuse for this type of conduct absent admissible evidence that the lawyer has engaged in bad conduct relevant to the issues in the case.

Lyin' and Cheatin' in Discovery: Chili Seller Gives the Finger to the Plaintiffs and Co-Defendants

Anna Ayala ain't got nothin' on these folks. You remember Anna - she gave Wendy's the finger - in a bowl of chili - and then said that Wendy's gave it to her. She is going to prison.

Now, a food supplier - of chili - has given the finger to the court system. Their current problem: a bunch of people have grabbed that finger and are about to twist it off.

This article from the Houston Chronicle is a horror story about discovery abuse. Fifteen people got sick and ten were hospitalized after eating from tubs of chili con carne. Litigation followed. Read this excerpt to learn about the discovery issue:

"At the center of allegations is Ben E. Keith Foods, among the region's biggest restaurant suppliers, which stands accused of withholding "smoking gun" memos.

The notes suggest that Keith managers misled state and federal investigators trying to track the source of the disease.

Opposing lawyers say the memos buttress allegations that Keith received thawed and refrozen chili that had been rejected by a Dallas restaurant, got a full refund plus a disposal fee from the chili maker and then resold the product to Town Talk Foods."

Continue Reading...

Guidant Corp - What did the FDA Know and When Did It Know It?

As reported here early earlier, Guidant has a problem with some of its defibrillators and has know about it for over three years. Now, it appears that it disclosed at least a part of what it knew to the FDA in February but the FDA did not act until June.

The New York Times just got the report under a FOIA request - a request orginally rejected by the FDA.

Read more here. For my other posts on this subject click here and here.

More Q and A with Lanier

I know some of you may be sick of reading about the Texas Vioxx trial, but this piece - a Q & A with Mark Lanier with questions posted by readers - is different and very interesting. Note the resources Lanier poured into this trial.

Vioxx Trial - the New Jersey Case

Well, round two starts on Monday in New Jersey. This case appears stronger on causation that the Texas case, but now Merck has a good idea about what will be coming. Then again, so do the plaintiff's lawyers.

Here is a nice summary of the case.

Ford Recalls Vehicles - Fire Risk

The NYT has reported that Ford has recalled almost 4,000,000 trucks and SUVs, saying that a problem with the cruise control could cause the vehicle to catch fire. There have been almost 1200 reports of fire to date. Ford had earlier recalled almost 800,000 for a simliar concern.

The model years at issue are 1994 - 2002.

According to the Times, "Ford said it believed that brake fluid may leak from the switch that deactivates the cruise control once the driver steps on the brake pedal. That fluid can drip down to the cruise control's electrical component, cause corrosion and ignite a fire, the company said."

NHTSA has received more than 550 reports of vehicle fires from these model years.

UPDATE: Here is another article.

Standards in Products Litigation

What does the industry say about how a product should be manufactured? Look to this site as a resource for product safety research.

The site also has links to information about problems with medical devices, product recalls, and patent data.

Thanks to Bob Kraft for bringing this site to my attention.

The Definition of Product

Can a product that is not completely installed be a product? The 3-judge panel of the Pennsylvania Superior Court said "yes."

Sprinkler systems were being contructed in a three huge warehouses for documents storage. Although the sprinkler system was "admittedly incomplete," the sprinkler system was issuing "material and test certificates" for those portions of the buildings were the documents were actually being stored. Hence, the Court said, the sprinkler system was a "product" and strict liability law was applicable.

Read an article about the case here.

Mark Lanier

Here is a great article about Mark Lanier and his recent victory in the Vioxx trial in Texas.

Vioxx Trial Schedule

State Court New Jersey September 12
State Court Houston October (exact date unknown)
Federal Court New Orleans Nov. 28,
Federal Court New Orleans, Feb. 13, 2006
Federal Court New Orleans, March 13, 2006
Federal Court New Orleans, April 10, 2006

By the way, according to this article in the New York Times, Merck has shifted its strategy and now said that it may settle some of the claims against it.

Verdict for Toyota Reversed

The 11th Circuit has reversed a jury verdict in favor of Toyota in a seat belt case, holding that the judge should have instructed the jury on the consumer expectation test. The judge only instructed on the risk-utility test. The judge was applying Florida law and the 11th Circuit ruled that, under Florida law, a seatbelt is a product about which a ordinary consumer could form expectations.

Read the opinion here. As you do remember that Tennessee also has a consumer expectation test in products cases.

Lighter Manufacturer Held Liable in Child Death Case

The Illinois Court of Appeals remanded a wrongful death case for trial on behalf of a child who died in a fire started by a lighter that lacked child-resistent features. Name of the lighter: "Aim 'n Flame."

The court found that the jury could have reasonably concluded that the risks of the lighter as manufactured outweighed the benefits of it, making it defective. The court affirmed dismissal of the negligence and failure to warn claims.

Read the opinion here

What If Merck Had Won?

This represents my best guess of what the tort reformers would have wrote if Merck had won the Texas Vioxx trial:

"Well, the greedy plaintiff's lawyers did their best but they could not fool the good people of Texas. Mark Lanier, who is supposed to be a star of the plaintiff's bar, was rumored by the liberal media to be winning the case, which only shows how out-of-touch they are with mainstream America. Real people can see right through a huckster like Lanier, who apparently left his alleged trial advocacy skills in his plane.

Sooner or later the socialists who have (temporarily) captured the American media will learn that jurors will not fall for the sympathy plays used by Lanier and his ilk. No - jurors listen to and evaluate the facts. They listen to scientific experts and disregard those who create new "science" for the purposes of litigation. The American people are not dummies, notwithstanding the pabulum that they have been served by a media that assumes they are ignorant.

Reasonable people handed such a defeat would fold up their tents, go home and lick their wounds. But not plaintiffs' lawyers - they will continue to try to suck the blood out of Merck in the hope that they can extort some small settlement and then declare victory. That is the way the mass tort industry works - threaten, run up the expenses, settle cheap, and laugh all of the way to the bank.

In the meantime, the economic well-being of these companies is threatened, and they are left to fight frivolous lawsuits rather than develop new drugs which will save lives. The cost to the economy is enormous, and only God knows how many lives greedy trial lawyers take every year by forcing good companies to defend false claims filed by these hucksters.

This is why liberal Democrats in the Senate must be forced out of office. They are the ones standing in the way of reform. They allow junk science to support frivilous claims, all of which lines the pockets of their political supporter, the trial bar.

The people in Texas should be proud of the jury in the Vioxx case. They listened to the judge, listened to the evidence, and did justice notwithstanding the blatant appeals to sympathy by a lawyer trying to hit it big. The people who really understand heart and soul of America are not at all surprised by this result. Indeed, the only people who are truly surprised by the verdict are trial lawyers, who seem to think that the public will continue to buy their defective work product."

Next Vioxx Trial

The next Vioxx trial in September 12 in New Jersey.

More Thoughts on Vioxx Verdict

I watched some of the news coverage on the Vioxx verdict and have some more thoughts....

First, Merck lost $5B in market cap in a few hours. I am not sure the losses are over. It is clear that the jury did not believe Merck. The jurors I saw interviewed seemed intelligent. They were just outraged that Merck knew about a problem and tell not warn about it. Any investor who saw juror interviews would be more concerned about the value of the company than he or she was before seeing the interviews.

Second, we all know now that thanks to the lobbyists and the Texas legislature the punitive verdict will be cut down below $2,000,000. My guess is that the compensatory verdict will be cut, too - it certainly would be cut in Tennessee.

Third, I was shocked at some of the commentators who talked about the need of consumers to be more aware of the risks of the drugs they consume. This is generally true, but the point here was that consumers could not be aware because Merck did not disclose the risks. All of this drug advertising lures people in to a false sense of security about drugs, and simply putting information in fine print in a package insert is an inadequate method of warning of the risk.

Fourth, I did not see any interview where the jurors were asked about the perceived value of Vioxx vs. NSAIDs. My information is that Vioxx had little additional value, especially when compared with the risk, unless the patient had GI problems that ruled out the used of NSAIDs. If the jurors came to believe that, then Merck is in big trouble - they sold an unreasonably dangerous product without value.

Of course, Merck thinks the drugs have value, as indicated by this NYT story. And, as I indicated above, for some patients they undoubtedly do. But for all patients with arthritic pain?

As I said yesterday the next few trials are huge. If Merck racks up two or three losses in a row - whatever the size, they are going to be in a deep hole.

Congradulations to Mark Lanier and his trial team. I am a part of the Vioxx litigation group and will get the opportunity to read the trial transcripts. I can't wait.

An Early Thought About the Vioxx Verdict

I believe that the next trial is in New Jersey next month (plaintiff had an MI; he survived) followed by a trial in federal court in New Orleans in November.

The wonderful thing about this verdict for the rest of the cases is that before trial the plaintiff was not expected to win. Merck thought they had a strong causation case and, as I pointed out in the past, historically the plaintiff loses the first few cases of this type.

Obviously, it would be a mistake to assume that Merck will lay down in these cases given this one defeat. The venue is considered pro-plaintiff, although insiders have indicated that they did not thing that the jury itself was not particularly pro-plaintiff as jury selection ended. In addition, the case was tried by a fantastic lawyer - that obviously makes a difference. Hopefully, Mark Lanier will be invited to try the next few cases.

It would be a mistake to assume that every person who took Vioxx has a personal injury case. The same criteria for case acceptance must apply. This verdict tells us only that the liability issue and the general causation issue can be won; it does not tell us that causation can be proved in every case. And, yes, it tells us that a jury can get angry about what Merck did.

Vioxx Trial in Texas PLAINTIFF WINS !!!

The Plaintiff won $229,000,000 in punitive damages in the Texas Vioxx trial. More later.

This is a very preliminary report. The amount may be compensatory and punitive damages. In fact, I just heard that the total award is $253,400,000, subject to caps. Punitives are capped based on the computation of economic damages.

Addendum: Look here for a photo of a lawyer who just won an important case. There are a couple of other great photos that follow in the slide show.

Addendum II

Loss of Pecuniary Past: $100k
Loss of Pecuniary Future: $350k
Loss of Companionship Past: $2M
Loss of Companionship Future: $10M
Mental Anguish Past: $2M
Mental Anguish Future: $10M
Exemplary: $229M

Addendum III

Merck's press release about the verdict.

Texas Vioxx Trial

The Vioxx jury has asked to see the testimony of the pathologist. Read more here.

Texas Vioxx Trial

The jury deliberated 7 hours yesterday - no verdict yet. I will keep you posted.

Texas Vioxx Trial

Here is a great story on the status of the Texas Vioxx trial by the New York Times.

The first federal Vioxx case is scheduled for November 28, 2005 in New Orleans. The plaintiff is Evelyn Plunkett; her husband died of a heart attack.

First Vioxx Case Goes to Jury

The jury in the Texas Vioxx case is hearing closing arguments today. I will let you know when I hear about the verdict.

UPDATE: Here is an article giving a brief summary of the arguments.

A New York Times Review of the Texas Vioxx Trial

The NYT has done a review of the testimony to date in the Texas Vioxx trial. The Times concludes that the plaintiff has the upper hand, which one would hope would be true since the defense has not put on its case yet but is still good news for the plaintiff.

The article reviews some of the testimony. For example, consider this excerpt:

Mr. Lanier later asked Dr. Nies [a retired Merck scientist involved in the Vioxx project] about a contract proposal in which Merck had offered to pay researchers at Harvard $200,000 to lead a study that would have directly examined Vioxx's heart risks. Dr. Nies said the study would have been unethical, which is why the study was ultimately scrapped.

"Before you say it was unethical, look who signed the contract," Mr. Lanier said, showing Dr. Nies the signature. "It was you."


A victory in this case will be a real blow to Merck, despite what they may say afterwards. History tells us that the first few trials in any multi-plaintiff product liability action lose.

If Lanier loses this trial, it is not for want of effort or talent.

Vioxx Trial - Plaintiff Rests

The Plaintiff closed her case yesterday in the Texas Vioxx trial, and Merck called its first witness, a researcher.

One of Merck's arguments is that the decedent was a smoker. His widow testified that he had not smoked in 15 years.

I assume that Merck has at least one defense better than that one.


Do you have a potential case where you need to know something about a chemical substance? Look first to MSDS - Material Safety Data Sheets. These documents may be found here.

MSDS have lots of information, including ...

Section 1 - Product and Company Identification
Section 2 - Compositon/Information on Ingredients
Section 3 - Hazards Identification Including Emergency Overview
Section 4 - First Aid Measures
Section 5 - Fire Fighting Measures
Section 6 - Accidental Release Measures
Section 7 - Handling and Storage
Section 8 - Exposure Controls & Personal Protection
Section 9 - Physical & Chemical Properties
Section 10 - Stability & Reactivity Data
Section 11 - Toxicological Information
Section 12 - Ecological Information
Section 13 - Disposal Considerations
Section 14 - MSDS Transport Information
Section 15 - Regulatory Information
Section 16 - Other Information

Have fun!

Rule 407 - Subsequent Remedial Measures

Subject to several exceptions, Rule 407 prohibits the introduction into evidence of subsequent remedial measures. The Third Circuit Court of Appeals has just joined several other circuits in holding that the exclusionary rule does not apply when the remedial measures are made by a third party.

Judge Smith wrote that "The rule recognizes that manufacturers will be discouraged from improving the safety of their products if such changes can be introduced as evidence that their previous designs were defective." He went on to say that "this policy is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit." Judge Smith explained that every federal circuit to address the issue -- the 1st, 4th, 5th, 7th, 9th and 10th -- has likewise concluded that Rule 407 does not apply to subsequent remedial measures taken by a nonparty.

Texas Vioxx Trial

The Texas Supreme Court denied Merck's interlocutory appeal concerning the admissibility of the testimony of the pathologist who performed the autopsy on the plaintiff's decedent. The pathologist's deposition was played for the jury yesterday.

Here is a summary of yesterday's action from the New York Times.


They are called OSIs - other similar incidents. Plaintiffs try to get them admitted into evidence in products liability cases to show evidence of defect and knowledge of defect. The incidents must be "substantially similar" and there is (almost) always a fight over what falls within that catergory.

Here is a recent opinion from the Eighth Circuit that upheld the admissibility of OSIs in a products case involving use of a rachet system on a motor vehicle carrier.

Medical Monitoring

What do you do when you represent people who have been exposed to a dangerous substance but to date have not experienced an injury? Some lawyers have brought what is known as a medical monitoring claim, asking that the defendant be required to pay money to monitor the health of the plaintiff to identify and then treat health problems related to the exposure.

Plaintiffs in that situation are in a tough spot. If they wait until they suffer an "injury" there will be an argument that a statute of limitations or a statute of repose has run. If they file suit too early the defendant argues that the plaintiffs have not been injured and therefore do not have standing to bring a claim.

What is the state of the law on this issue? The Supreme Court of Michigan has just ruled that plaintiffs may not bring this type of claim. In Henry v. The Dow Chemical Corp. plaintiffs claimed that they were exposed to dioxin and needed medical monitoring. Dioxin is known to cause cancer, liver disease, and birth defects. The State of Michigan determined that the most likely source of the contamination was Dow's Midland plant.

The Court rejected the claims, saying that Michigan tort law required an actual, present injury for the plaintiffs to recover damages, and that claims for medical monitoring were an issue for the state legislature.

The dissent is fascinating and reflects a totally different philosophy of the role of tort law in society. Here is a sample: "Today, the majority holds that defendant's egregious long-term contamination of our environment and the resulting negative health effects to plaintiffs are just another accepted cost of doing business. But as long as defendant is not held responsible for the decisions it makes, it behooves corporations like defendant to continue with business practices that harm our residents because the courts will shield them from liability by claiming that they are powerless to act. And it is the people of our state who will pay the costs-with their money and with their lives-of allowing defendant to contaminate our environment with no repercussions. Sadly, this Court has resorted to a cost-benefit analysis to determine and,consequently, degrade the value of human life, and this is an analysis that I cannot support. ... Today, our Court has shirked its duty to protect plaintiffs and the people of our state, thereby leaving defendant's practices and interests unassailed. As such, I must respectfully dissent."

Alabama, Nevada and Kentucky have also rejected this type of claim. West Virginia allows such claims. Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W. Va. 1999).

One can only hope that if one or more of these plaintiffs or their children ever get ill from dioxin no court will hold that their claim is time-barred.

Vioxx Witness Update

I wrote yesterday that a trial judge was going to permit the pathologist who performed the autopsy of the plaintiff's decedent in the Vioxx case to testify.

How important is that testimony to the plaintiff? Well, a good guage of that is that Merck has appealed the decision in the middle of the trial. The court of appeals denied the request for review, and Merck appealed to the Texas Supreme Court.

How can Merck claim surprise when the doctor was on its witness list?

Practice pointer: dang near everything you do in litigation has some implication somewhere later. Playing cute with a witness list, i.e. trying to hide the ball about who you were actually going to call by listing people you have no intention of calling just got these folks in trouble.

Of course, Lanier took a gamble by not putting the doctor on his own list. Then again, how much of a gamble is it that a big firm working for a drug company is not going to name everybody in the universe on its witness list?

Class Action for Third-Party Payors of Vioxx

A New Jersey state court trial judge has certified a nationwide class action on behalf of unions and other third-party payors of health claims in a lawsuit alleging that the companies would not have paid for Vioxx had they been warned of the dangers of it. The suit is brought under the NJ Consumer Protection Act. Merck is headquartered in New Jersey.

The judge wrote that "there are significant factual and legal issues common to all class members to make adjudication through class action fair and efficient. Having each individual class member attempt to litigate their claims (separately) would result in needless duplicative discovery, undue expense to the parties as well as an undue burden on judicial economy."

Although the merits of the litigation have not been decided, the right to bring the case as a class action is a major victory for the plaintiffs.

Vioxx Trial

One of the big fights in the Vioxx trial underway in Texas is the cause of death. The Plaintiff has been granted permission to have the pathologist who did the autopsy testify - and she is giving great testimony that supports the plaintiff.

Here is the complete article:

Associated Press

ANGLETON, Texas - A pathologist whose 2001 autopsy of a Texas man who is central to the nation's first Vioxx-related civil trial can testify for jurors either in person or through a videotaped deposition, a judge ruled Thursday.

According to a transcript of the deposition obtained by The Associated Press, the pathologist, Dr. Maria Araneta, told attorneys earlier this week that Robert Ernst's death from arrhythmia, or an irregular heartbeat, was probably brought on by a heart attack even though her autopsy report didn't note that.

Her opinion counters Vioxx-maker Merck & Co.'s reliance on her report to bolster its position that Ernst didn't have a heart attack.

But her opinion supports plaintiff's lawyer Mark Lanier's contention that Ernst suffered a heart attack that killed him too fast to leave evidence of heart damage. He also has drawn jurors' attention to Merck's medical manual used by doctors across the country, which says arrhythmia in some form occurs in more than 90 percent of heart attack patients.

Click "Continue Reading" to see more.

Continue Reading...

Boston Scientific Stents

Boston Scientific makes stents. "Stents are tiny wire-mesh tubes used to prop open heart arteries after fatty deposits have been cleared away. The devices are inserted through blood vessels and deployed by a tiny balloon that is inflated, pushing the stent in place." The company has had a problem with its Taxus line of stents, and did a voluntary recall this year.

An article in a frecent edition of the Wall Street Journal reported data from the FDA that at least 45 cases where it was reported that there were difficulties with balloon deflation and 86 cases in which balloons became stuck and were difficult to remove from patients. The problems resulted in three deaths and several injuries, the paper reported.

The FDA plans to take no action.

Read more here.

I have a couple friends who have some of these cases. They can't give me any specifics - they are wrapped up in a protective order - but the first of the cases goes to trial this fall. I will keep you updated.

Update on the Vioxx Trial

Here is an update on the first Vioxx trial, as reported by the New York Times.

Guidant Corp Issues New Warning - Now Pacemakers

Guidant has shared more information about problems with some of its pacemakers. A news article reports that "the Indianapolis-based company, which last month recalled almost 109,000 defibrillators, released a warning that said a sealing component in the pacemakers had degraded in some cases, resulting in higher-than-normal moisture in the devices and possible malfunction."

The models at issue are: Pulsar Max, Pulsar, Discovery, Meridian, Pulsar Max II, Discovery II, Virtus Plus II, Intelis II and Contak TR. The devices have not been implanted in patients in about four years.

There are about 18,000 of the pacemakers still implanted in patients. About 88,000 of the defibrillators remain in patients.

Guidant said that it would replace the pacemakers at no charge through the end of the year, even though the warranty on many had expired, and that it would reimburse patients as much as $2,500 for medical expenses. That later offer seems light to me, especially when that $2500 is probably subject to a claim of reimbursement or subrogation from a government payor or health insurance company.

FDA Scientists Moonlight for Drug Companies?

In Tennessee, a product that complies with government standards is presumed not to be defective or unreasonably dangerous.

So, you can understand why those of us who represent consumers injured by products are more than a little concerned by this news report. The NYT reports that "[f]orty-four government scientists have violated ethics rules on collaborating with pharmaceutical companies...."

Some of the scientists may have violated criminal laws.

Sleep well, fellow chickens, the fox has the security of the coop under control.

Duragesic Patch Warning

Lots of folks use Duragesic Patchs for pain control. Now, the FDA is warning that the patch presents a risk of death. Duragesic is the brand name of the generic product known as fentanyl.

The directions for using the fentanyl skin patch must be followed exactly to prevent death or other serious side effects from overdosing with fentanyl, according to the FDA.

These are the signs of an overdose: "trouble breathing or shallow breathing; tiredness, extreme sleepiness, or sedation; inability to think, talk, or walk normally; and feeling faint, dizzy, or confused. If these signs occur, patients or their caregivers should get medical attention right away."

Read more here. If you want even more detailed information, go to the FDA site on point by clicking here.

Merck Cost Lives by Bluffing on Vioxx Safety

The more information trickles out about Merck's knowledge of the risks of Vioxx, the worse the company looks. NPR has a great piece about Merck's efforts to publish articles that downplayed the risk of heart attack and stroke due to Vioxx use. Listen to the story here (follow the link, and click on "Listen" underneath the headline).

Vioxx Trial - Round 1 - A Review

Here is an interesting article about the first Vioxx case that has made it to trial.

Look at the article's description of the defense team:

"Judging from its lawyers involved in Ernst, Merck should have its own gallery of litigation support. Leading the case as co-chairs are Fulbright & Jaworski partner Gerry Lowry of Houston and partner David Kiernan of Washington, D.C.'s Williams & Connolly. They will be receiving assists from lawyers in Fulbright's Houston and Dallas offices. Josephson and two other Baker Botts attorneys are also listed as counsel for Merck on court documents. And overseeing all Vioxx litigation on a national level is New York-based Hughes Hubbard & Reed."

Here is an even more interesting article, this one from Fortune magazine.

Effort to Delay First Vioxx Trial Rejected

Merck tried - and failed - to postpone the first Vioxx trial. The case will be tried starting next week in rural Texas courtroom.

Merck said they sought a continuance because of pre-trial publicity. The judge said he would not grant a continuance before looking responses to the jury questionaires.

Merck had earlier agreed in writing that it would not seek a continuance except for illness of one of its lead counsel. Oh well.

Products Liability - Defense Costs

Thanks to Robert Ambrogi for telling us about an interesting study from the Rand Corporation.

Rand studied asbestos payments, and found that 42 cents of every dollar went to victims, 27 cents went to their lawyers, and 31 cents went to defense costs. See an executive summary of the study here.

While it is a shame that "administrative" costs eat up such a large share of the asbestos dollars, it is interesting to see it actually documented that defense costs exceed the monies paid to the lawyers for the victims. This study helps document why it is so unfair to cap attorneys' fees on one side of the "v".

In Tennessee, I keep up with the annual reports filed by State Volunteer Mutual Insurance Company, a physican-owned medical malpractice insurer. They are a well-run company and have made a fortune selling insurance to the doctor owners.

Well, I have analyzed the Company's loss payments expenses and, guess what? Over the years the Company's loss payment expenses equal about one-third of their total loss payouts. And this even though the Company does not have to pay its expert witnesses anywhere near what plaintiffs have to pay theirs.

I am all in favor of reducing attorneys fees and expenses in litigation. Anyone who tries lawsuits knows that litigation is expensive - too expensive. But capping fees for one party and not the other - well, that is obviously wrong to anyone who thinks about it for a nanosecond.

Another Warning From Guidant on Defibrillators

The problems with Guidant's defibrillators continue. On Saturday, Guidant issued another warning about five more of its defibrillators. These five are in addition to the seven defibrillator models that Guidant recalled earlier last week. Guidant says that doctors "should discontinue implants of these devices pending further notice."

It appears that Guidant has begun to do the right thing. However, only time will tell if they did the right thing in a timely fashion. Now is the time to ask Howard Baker's famous question: What did they know, and when did they know it?

Continue Reading...

First Vioxx Trial Next Month in Texas

The first Vioxx trial will occur next month in Texas. Mark Lanier is the lawyer for the plaintiff; his client is the widow of a 59 year old triathlete who died in his sleep. He had been taking Vioxx for about 6 months.

Mark has a great reputation. It should be a dang good trial.

Guidant Defibrillators Recalled

The good news is that the FDA has recalled Guidant defibrillators. Here is the press release that discusses the recall and lists the models that are being recalled. Somewhere between 40,000 and 50,000 people are affected by the recall.

It is known that two people have died because of a malfunction in the device.

The bad news is that Guidant has not yet indicated that it will pay for the full cost of the replacement (including surgeon and hospital fees). Reportedly, it is only going to pay (i.e.not charge) for the cost of a new device. A hospital charges about $2000 for a device like this; the cost to Guidant is a fraction of this amount.

Patients: contact the surgeon who put in your device and find out if it has been recalled. Then, talk with your surgeon about the wisdom of having the device replaced. Feel free to seek a second opinion. Here is an article that gives you more information about the recall and the risks.

We have addressed this topic in previous posts (Go to Products Liability). Guidant should, at a minimum, pay all costs associated with the removal of the devices. It should also reimburse the patients for lost earnings during any period of incapacity because of the replacement of the device and it should be fully responsible for any complications of the replacement procedure. The taxpayers (who pick up the cost of Medicare and Medicaid funding) and those with health insurance (whose premiums are impacted by health care costs) should not pay one penny to fix a problem caused by Guidant.

I am confident that Guidant will appropriately address this issue sooner rather than later. Why? Why after all these months of not bringing the problem with the devices to the attention of regulators and patients? Well, because it's code of ethics requires it. Here is an excerpt:

"Guidant is a leader in the medical technology industry. We believe that conducting our business in accordance with high standards of business conduct is fundamental to our ability to succeed in the marketplace. We are committed to being an innovative, unique, world-class corporation. The only way to achieve this commitment is by providing a high standard of leadership, along with unquestionable integrity. Continued honest and ethical business conduct will earn Guidant the trust of customers, patients, suppliers, investors, regulators and fellow employees, while sustaining our long-term commitment to our shareholders."

For more on Guidant's views on its ethics, click here. Let's compare actions and words over the next few days.

Guidant Class Action Suits Filed

I wrote on May 24th about Guidant Corporation. Not surprisingly, Guidant has been hit with class action suits concerning its defective defibrillators; read the accompanying article. This suit does not appear to include people whose loved ones who have already died because of a malfunction of the device; however, I would have to see the actual court papers to know the precise class definion. It does include those persons who currently have the device in their body.

It also appears that someone else has purported to file a personal injury or wrongful death class action - a step that rarely works and, in my mind, is only an attempt to get publicity in an effort to get more cases.

Why do personal injury and wrongful death class actions rarely work? Because the law requires that claims in class actions must be substantially similar. Personal injury and wrongful death claims usually have such different underlying factual circumstances that class certification is impossible without the defendant's consent. Class actions seeking medical monitoring or payment for removal of the devices may be appropriate for class action certification.

Thanks to Steve for bringing the class action suit to my attention.

Products Liability - Zyprexia Settlement

A settlement has been announced in the products liability cases involving the drug Zyprexia.

This drug is alleged to cause diabetes and other serious health conditions. About 7000 lawsuits concerning the drug are pending.

Plaintiffs have a right to opt out of the settlement, which was negotiated between a steering committee of lawyers representing the plaintiffs and the drug's manufacturer, Pfizer.

Drug Companies Withhold Data

Do you remember when the drug companies told us that they were going to release more data about clinical drug trials?

That was a year ago. The New York Times has taken a look at the record developed over the last year and discovered that some drug companies are not doing what they said they would do.

Read the story here.

Important Information for Those With Roof Crush and Rollover Cases

Public Citizen has great information about roof crush and rollover incidents on its website. The site informs about the dangers of rollovers and the automobile industry's knowledge of those dangers.

The site has a study of 54 rollovers and concludes that "the majority of roof damage occurs on the side of the roof opposite the side that leads into the roll. When the leading side strikes the ground, the vehicle's glass shatters and the roof pillars buckle, meaning that when the far side subsequently hits the ground, the roof strength has already been severely compromised. Consequently, the roof collapses, killing or severely injuring the occupant on that side. Moreover, further rolling can continue to crush the entire."

The site reports on another study, "Roof Crush as a Source of Injury in Rollover Crashes," by Dr. Martha Bidez, Dr. John Cochran, and Dottie King. ACcording to Public Citizen, the study demonstrates: "1) Roof crush is linked to serious injury in rollovers, 2) the industry's theory that occupants "dive" into the roof is false based on the industry's own testing data, and 3) dynamic rollover tests produce repeatable results when viewed in the framework of occupant injury and are correlated to real-world data on rollover crashes."

Especially interesting are the documents from GM and Volvo (a division of Ford) about rollovers. The Volvo documents show the efforts the company has made to reduce the risk of injury and death in rollovers - documents that will prove interesting in cases against its parent, Ford. Read the press release about the documents here.

This site is a wonderful source of information that bears review before you even think about accepting a rollover case.

Guidant Decides Not to Warn About Manufacturing Defect in Defibrillator

Guidant Corporation, a medical device manufacturer, did not tell doctors or patients for three years that a unit implanted in an estimated 24,000 people that is designed to shock a faltering heart contains a flaw that has caused a small number of those units to short-circuit and malfunction.

Defibrillators are put in people whose heart cannot be relied upon to operate consistently on its own. Of course, if your heart does not maintain an appropriate rhythm over a given period of time, you can die.

According to the New York Times, Dr. Joseph Smith, a corporate representative, said "We choose to extraordinarily communicate [to doctors or patients] when we have a product that does not live up to our expectations." Apparently, then, Guidant expected that at least 26 of the units it manufactured with the expectation of helping people to live would short-circuit and malfunction and determined that that risk was not a significant one (at least for its company). Guidant knew that twenty-five of those units failed before the death of a 21-year old college student from Minnesota, who died when his device failed. His death is the only known death from the malfunction of the device.

My guess is that Joshua Oukrop (the young man who died) and his family had different expectations than Guidant. My guess is that they thought device implanted in Joshua's chest would work. My guess is that they thought if the company knew of a defect in the device they would let him or his doctor know. My guess is that Dr. Smith would have a different point of view if the device was implanted in the chest of his child.

Plaintiffs' Jury Verdict Reversed in Metabolife Case

A jury verdict for several plaintiffs who alleged that they were injured by the weight-loss supplement Metabolife 356 was recently reversed by the 11th Cir. Court of Appeals.

The Court ruled that the expert testimony offered by the Plaintiff on the causation issue should not have survived at Daubert challenge. The Court said that neither expert used a reliable methadology to prove that Metabolife 356 causes strokes or heart attacks, either generally or in the plaintiffs. The 49-page opinion is a reminder of the risk of pushing the envelope on "new" products cases.


Read this release hot of the press from the New York Times:

May 5, 2005

Merck Announces Resignation of Chief and Names Replacement


NEW YORK - Merck & Co. said Thursday that Raymond V. Gilmartin is stepping down effective immediately from the top leadership spots at the drugmaker which has been under pressure since recalling its blockbuster painkiller Vioxx last fall.

Merck named Richard T. Clark as chief executive officer, president and a director in Gilmartin's place. Gilmartin is also stepping down as chairman although no successor was named.

Clark is currently the president of Merck's manufacturing division and previously served as the chairman and chief executive officer of Medco Health Solutions Inc.

Gilmartin, who has served as president and CEO since 1994, will serve as special adviser to the board's executive committee until March 2006, when he will retire.

Article Questions Need for Revision of Vioxx Study Report

A new article from Bloomberg reports that changes may have to be made to an Annals of Internal Medicine article linking Vioxx to heart problems.

Here is the complete article.

Tuesday, May 3, 2005


The Annals of Internal Medicine may publish a correction to a Merck & Co.-sponsored study of the pain pill Vioxx to show the drug had a higher risk of heart attacks than originally stated, journal editor Harold Sox said.
The study, published in 2003, listed five heart attacks among arthritis patients taking Vioxx compared with one in those taking naproxen. Three additional cardiac deaths in the Vioxx group went unmentioned, including one in which company officials may have pressured a researcher to change his opinion about the likely cause of death, the New York Times reported on April 24.

"Corrections happen all the time, but corrections that materially change the message of the article are pretty uncommon," Sox said in a telephone interview April 27. "If they had told us it was 8-to-1, it would have been much different than 5-to-1."

Merck, the third-largest U.S. drugmaker, says it had no definitive evidence of Vioxx's heart risks until right before it pulled the $2.5 billion-a-year drug in September 2004 in the largest drug recall ever. Some doctors, lawmakers and plaintiffs have said the Whitehouse Station-based company should have known before then that Vioxx might be dangerous.
Sox said he learned that the trial results he published might have been manipulated when he opened his New York Times on April 24. He met with his editorial staff the following day and posted a notice on the magazine's Web site notifying readers the staff was considering a correction.

"Basically, we want to find out, did those patients really have a heart attack or not," Sox, who is also a physician, said in the interview last week. He hopes to have an answer within the month.

Merck spokeswoman Jeanine Clemente said in an e-mailed statement Monday that the study doesn't need to be corrected and the company would be happy to discuss any concerns the journal editors may have. On April 24, Merck spokeswoman Cynthia Smith told Bloomberg News that Merck submitted the results of the research, including data on adverse effects regardless of whether they were classified as cardiovascular, promptly to the U.S. Food and Drug Administration.

Continue Reading...

Immunity from Defective Products Makes Our Nation Safe from Terrorists

The Bush Administration's solution to most problems is to cut taxes for people who make more than $100,000 per year. The Department of Homeland Security has figured out a different way to make our society safer from the threat of terrorists - extend immunity from suit to companies who make defective products related to the fight against terrorism.

Homeland Security Secretary Michael Chertoff, speaking to the U.S. Chamber of Commerce, said the his department has "not fully succeeded in exploiting" legislation that limits the extent companies can be sued for problematic products.

"I have a great deal of respect and understanding of the importance of our legal system," said Chertoff, a former federal prosecutor and appeals court judge. "But I also know how important it is that the legal system not create unduly high and burdensome transaction costs that do not allow us to make the kinds of rational decisions we have to make in order to protect ourselves." Read more here.


Judge to Hold Hearing to Continue First Vioxx Trial

According to a press report, both sides to the nation's first Vioxx trial have asked the judge to continue the trial date.

The trial is set for May 23, 2005. Both sides asked for a continuance because federal judge Eldon E. Fallon, the judge presiding over the Vioxx MDL, asked that the case be continued so that it would not interfere with the federal litigation. That request is not binding on the state trial judge because state cases are not part of the MDL.

The hearing is set for Tuesday, May 3, 2005.

Fen Phen

For an unflattering look at the current state of the fen phen litigation look at this article from The American Lawyer.

FDA Asks Pfizer to Withdraw Bextra From Market

The Food and Drug Administration has asked Pfizer to withdraw Bextra from the market "because the overall risk versus benefit profile for the drug is unfavorable." Pfizer has agreed to do so pending further discussions with the agency. Here is a the FDA press release.

The press release goes on to say that the "FDA is asking the manufacturers of all OTC NSAIDs to revise their labels to include more specific information about the potential CV and GI risks, and information to assist consumers in the safe use of the drugs." Celebrex is being allowed to stay on the market with revised labels.

This probably means that the FDA will not allow Vioxx back on the market. I will keep you updated.

Vioxx Cases MDL Official Website

Our firm is handling Vioxx cases. The MDL Panel has just sent all of the cases to the ED of Louisana for pretrial proceedings. Judge Fallon will be handling the case.

The judge has set up a website for pretrial orders and proceedings. Here it is.