Articles Posted in Products Liability

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:

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.

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.

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."

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."

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.

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.