Day on Torts

October 24, 2006

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."

October 23, 2006

Legal Fees

by The Law Offices of John Day, P.C.

I saw this and it reminded me of a recent conversation I had. I was having dinner with several judges and was complaining about what I felt have been some rather meager fee awards in consumer protection action cases. (Note: I had no pending cases before these judges on any attorneys’ fee issue and I do not have a regular TCPA practice.) I expressed the opinion that it was always relevant for a trial judge seeking to determine a reasonable fee for a prevailing plaintiff in a TCPA to have the defendant’s counsel produce his or her bills for an in camera review.

It just seems to me that a good starting point for determining what the prevailing party’s attorney should be paid is what the losing party paid his or her attorney to lose. Surely the winner should receive no less than the loser and, indeed, should probably be paid more, particularly if they accepted the case on a contingent fee basis.

Of course, their are many other relevant factors (the timing and substance of settlement proposals, etc.), but why not order production of that data?

October 20, 2006

Food Poisoning Blog

by The Law Offices of John Day, P.C.

My friend Bill Marler is THE man when it comes to food poisoning cases. His firm, based out of Seattle but with a nationwide practice, knows the science of food poisoning inside out.

We worked together on an e coli case in East Tennessee that we wrapped up earlier this year and got together in July at his home on Bainbridge Island for a wonderful evening. We talk regularly – most recently I called to give him grief about a story on him in the Wall Street Journal.

Bill’s firm has more blogs than any firm in America and now Bill has one of his own called, not surprisingly, the MarlerBlog. Read it to keep up with food litigation across the county.

October 19, 2006

Tort Deform Blog

by The Law Offices of John Day, P.C.

The Tort Deform Blog is offered by the Drum Major Institute of Public Policy. They say that they blog "confronts and transcends the arguments put forth by the tort ‘reform’ movement, working to ensure that all Americans can access the courts."

The blog is well-written and provides a lot of information for debunking some of the myths about the civil justice system

October 18, 2006

Stupid Lawsuit Fails

by The Law Offices of John Day, P.C.

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."

October 17, 2006

Follow-Up on Friday’s Post

by The Law Offices of John Day, P.C.

We had our hearing on the subrogation issue mentioned in last Friday’s post. Judge Bivins ruled that the made-whole doctrine survived the adoption of no-fault insurance in Michigan and also found that our clients were not made whole from our prior settlement with the defendants. Accordingly, he declined to enforce the no-fault insurer’s claimed subrogation right, increasing our clients’ total recovery by approximately $325,000.

One of our clients (Mr. Fraire) is from Mexico and speaks little English. He made the trip to Centerville (Hickman County) Tennessee for the hearing. Can you imagine going to a foreign country and being a part of a court proceeding? Can you imagine doing so when you cannot speak the language? (Our client knows more English than I know Spanish but not enough to fully understand what was happening as it was happening in the courtroom.) Mr. Fraire was more than adequately prepared by Brandon Bass and did a fine job.

The insurer has already indicated that they intend to appeal so I guess we will find ourselves in Nashville for oral arguments in about six months.

October 16, 2006

New Group Trial Lawyer Blog – Trial Lawyer Resource Center

by The Law Offices of John Day, P.C.

Mark Zamora (of A Georgia Lawyer ) and David Swammer (of the South Carolina Trial Law Blog) have been working on a group blog for nearly a year and went live about ten days ago. It’s called the Trial Lawyer Resource Center with a shorter URL of TLRCBlog.com. I am honored that they asked me to be a part of the group that includes these fine lawyers:

Matt Garretson (Cincinnati, Ohio)
Gary Gober (Nashville, TN)
Jay Harris (Toledo, OH)
Tom Kline (Philadelphia, PA)
Rick Kuykendall (Mobile, Alabama)
Todd O’Malley (Scranton, PA)
Ronald Miller (Baltimore, MD)
John Romano (West Palm Beach, FL)
Randy Scarlett (San Francisco, CA)
Karen Shelton (Charleston, SC) [lifecare planner / nurse case manager]
David Swanner (Myrtle Beach, SC)
Mark Zamora (Atlanta, GA)

In that group there are 5 past state TLA Presidents, 3 past Presidents of the Melvin Belli Society, 2 past Presidents of the Southern Trial Lawyers, the current President of Workers Injury Law & Advocacy Group, plus the incoming President of the Inner Circle of Advocates.

October 12, 2006

Reading Scientific Papers

by The Law Offices of John Day, P.C.

Scientific papers are often difficult to understand. The fact that they are often poorly written doesn’t help matters, but many of us lack the scientific background to quickly grasp and analyze scientific literature.

Here is an excerpt from an article published in the British Medical Journal that provides some help reading research papers. Titled "How to read a paper: Assessing the methodological quality of published papers," the article by Trisha Greenhalgh walks the reader through a proper method of determining whether the reader should change his or her practices based on reading a paper.

The key questions:

October 11, 2006

Another Spoliation Case – This One Against An Employer

by The Law Offices of John Day, P.C.

Employee Froman died in an on-the-job accident. Darling, one of the owners of the employer, threw away the equipment involved in the accident after being asked by an Indiana OSHA employee to keep it for inspection.

Froman’s estate filed suit against the employer; the suit included claims for negligent and intentional spoliation of evidence. The trial court refused to dismiss the claims for spoliation, the Court of Appeals affirmed, and the interlocutory appeal accepted by the Indiana Supreme Court.

The ISC reversed. It first noted that Indiana does not recognize an independent cause of action for spoliation against a party to the underlying claim (first-party spoliation) but had expressly left open the question of whether it would recognize an independent cause of action for third-party spoliation. (This sent a pretty strong signal about what was to happen next.)

October 10, 2006

Service of Process

by The Law Offices of John Day, P.C.

Is there anything duller than the rules of service of process? Perhaps not. Unless the only thing standing between you and collection of a $53,000,000 default judgment is application of those rules. Or unless your defense to a $53,000,000 default judgment is failure of service of process. Then Rule 4 starts looking interesting. Or terrifying.

Plaintiff obtained a $53,000,000 default judgment. Defendant corporation attempted to prevent execution on it, saying that process was not served on its registered agent (Caldwell) but rather on his secretary (Daniels), who represented that she was Caldwell’s secretary, had accepted service of process for Caldwell in the past, and would give the papers to Caldwell.

The evidence showed that Defendant did not answer or otherwise respond to the complaint and did not respond to Plaintiff counsel’s inquiries. Nor did it attend the hearing on a motion for a default judgment. Nor did it act after being sent a copy of order granting default judgment. Nor did it attend attend the hearing on the default judgment. Nor did it act after being sent a copy of the final judgment.Only when the judgment was filed in Tennessee to start the execution process did Defendant begin to fight.