Here is an interesting site that provides a good number of links of use to tort lawyers (and others). The site is published by the Philadelphia Association of Paralegals and has more than 100 links.
For instance, Omni Medical Search is a site that I was unfamiliar with that is referenced by the PAP. It looks great.
Enjoy.
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.
The ABAs House of Delegates voted 207-137 to recommend adding to Federal Rules of Civil Procedure Rule 26(a)(2) a privilege for draft reports and communications between attorneys and their experts.
A Law.com article on the votes reports that "[t]he proposed change was prompted by varying judicial interpretations of 1993 amendments that expanded permissible expert discovery from "materials relied on" by an expert to "any data or other information considered by an expert" in forming his or her opinion. Some judges protect drafts until experts turn them over to counsel, while others require counsel and experts to turn over all drafts. "
Read the full article here.
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;
A recent study reports about the risk of lack of sleep on commercial drivers. In an article entitled "Impaired Performance in Commercial Drivers: Role of Sleep Apnea and Short Sleep Duration" researchers from the University of Pennsylvania "examined 406 truck drivers and found that those who routinely slept less than five hours a night were likely to fare poorly on tests designed to measure sleepiness, attention and reaction time, and steering ability. Drivers with severe sleep apnea, a medical condition that causes a poor quality of sleep, also were sleepy and had performance impairment," according to a summary of the article at Insurance Journal.
The Penn report indicates that 5600 people per year are killed in wrecks with commercial trucks and that many of them involve drivers falling asleep at the wheel.
The Penn report is published in American Journal of Respiratory and Critical Care Medicine. The article can be accessed here.
Under Tennessee law fault cannot be assigned to a plaintiff’s employer but the defendant is permitted to prove and argue that the employer was the cause in fact of the injury.
But what if the defendant wants to ask the jury to apportion fault to an entity that is deemed an employer under Tennessee worker’s compensation law and therefore obtains the benefit of immunity from suit by the plaintiff? Can the statutory employer be assigned fault even though the plaintiff cannot sue it?
In a case of first impression, the Court of Appeals (Western Section) says "yes" in Troup v. Fischer Steel Corp., No. W2005-00913-COA-R3-CV ( August 10, 2006) and in doing so reversed a $500,000+ verdict for the plaintiff. The court ruled that the Trial Court erred when it failed to permit the steel subcontractor defendant from proving and arguing the fault of the general contractor in a personal injury case filed by the employee of the roofing subcontractor.
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.
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).
Next Wednesday (August 16, 2006) I will be presenting a one-hour seminar on Tennessee tort law. The seminar is called "Tennessee Tort Law: What’s Hot, What’s Next."
The telephonic seminar is sponsored by M. Lee Smith & Co. and begins at 10:00 CDT. Register here.
Did Burger King have a duty to design its stand-alone restaurant in such a way to protect its in-house dining customers from being struck by a car that came through the building’s wall?
The Illinois Supreme Court addressed this problem in the case of Marshall v. Burger King Corporation, Docket No. 100372, ( Ill. S.Ct. June 22, 2006). The Court started its analysis this way:
"The touchstone of this court’s duty analysis is to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. This court often discusses the policy considerations that inform this inquiry in terms of four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. " [Citations omitted.]
