Day on Torts

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.

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.

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.

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:

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.

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:

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. . . .

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.

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 http://www.martindale.com/ 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 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.

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 Law.com, 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.

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."

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. 

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.

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.

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.

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.

Law.com 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.

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.

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 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.

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

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

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 ....

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.

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.

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 § 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).)"

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.

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.

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

According to an article posted at www.insurancejournal.com, 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 www.lexisnexus.com; 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 www.uscourts.gov 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.)

Explosion?

Not quite.

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."

OK.

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.

An analysis by Forbes.

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

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.

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

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.

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

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.

Now, the punitive damage phase. Read here.

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.

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.

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.

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.

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

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

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

The next federal Vioxx trial begins June 12, 2006.

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

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

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.

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.

The news from the New Jersey Vioxx trials.

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

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.

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.

Here is the latest.

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

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

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."

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.

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

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

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.

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?

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.

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.

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.

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

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

Read more here.

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?

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.

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.

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.

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."

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."

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

Read more here.

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

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