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.
Jurisdiction Exercised Over Foreign Manufacturer
The Illinois Appellate Court has ruled that Illinois courts have jurisdiction over a Japanese parent corporation in a case alleging negligent design.
Plaintiff alleged that her daughter died as a result of a fire started with a Aim ‘n Flame II lighting rod. The lighting rod was designed by Tokai Corporatin in Japan and distributed by its wholly-owned subsidiary, Scripto-Tokai. The subsidiary admitted that Illinois courts had personal jurisdiction over it but the parent contested jurisdiction.
The Court put the issue and holding this way: “This case presents the question of whether a foreign corporation that designs a product can immunize itself from liability for negligent design by marketing the product through a subsidiary. We hold that it cannot. We find that the use of a subsidiary to introduce the product it designed to Illinois markets suffices for the exercise of personal jurisdiction over the foreign corporation for an action for negligent design.”
Blue Chipper – Medical Malpractice – Locality Rule
The case: Robinson v. LeCorps, 83 S.W.3d 718 (Tenn. 2002). Author: Justice E. Riley Anderson
Why it is a Blue Chipper: Robinson made it crystal clear that a standard of care expert in a medical malpractice case may not base that testimony on a national standard of care and that an expert’s testimony will be excluded if it based solely on a national standard.
The bottom line:
The Back Door is Open …
Ok, so you spend millions of dollars on Congressional elections trying to avoid responsibility for making a product that a jury may determine is defective or unreasonably dangerous and you can’t get enough votes to make it happen.
What’s a Pharma to do?
Go through the back door, via regulation, with some help from your friends at the FDA. As of June 30 new regulations were placed in force to provide more concise and better organized patient information package insert sheets. In return for the huge inconvenience this places on drug manufacturers, the FDA included language that would exempt drug manufacturers from state product liability.
Allstate’s Claims Handling Practice
Allstate is notorious for its hardball approach to handling claims. Now, Business Week Online tells about a new book “From Good Hands to Boxing Gloves” that will reveal the role that the consulting firm McKinsey & Co. played in changing the business practices of Allstate.
An excerpt from the article: “Collectively, the documents (obtained by the author of the book) present a portrait of business strategies that are at odds with the insurer’s carefully cultivated public image. Rather than simply rushing to the scene of an accident and doling out cash, Allstate deploys a variety of systems set in place by McKinsey to make sure it pays the minimum necessary — and it plays hardball with those who seek more.”
Another: “One of the key elements of McKinsey’s plan was reducing the number of claimants who turn to attorneys after an accident for help in collecting on their insurance. The consultants even forecast what the potential gains in this area would mean for Allstate’s stock. A 25% drop in attorneys appearing in several categories of cases could add $1.60 to Allstate’s share price, one slide states, according to [book author David] Berardinelli’s notes.”
Consumer Protection Act Applies to Claim Against Financial Advisor
Judge Bill Koch has written a opinion that is worth a read by everyone who visits this blog. The case is Johnson v. John Hancock Funds, No. M2005-00356-COA-R3-CV (Tenn. Ct. App., M.S., June 30, 2006).
Plaintiffs claimed that they received poor advice from their financial advisor and suffered a loss of money. They brought suit under the Tennessee Consumer Protection Act and also asserted several common law torts.
The trial court dismissed the TCPA claim. The Court of Appeals reversed, saying, in part, that:
Blog Report
I am happy to report that this blog has reached the 750-post milestone. The blog began in February, 2005 and has grown to appoximately 500 unique vistors per business day (only a couple hundred on weekends).
The experience has been a very positive one. It takes me back to the time I started the Tennessee Tort Law Letter over a decade ago. At the time I thought I had a good grasp on tort law, but after I started reading every tort decision released in Tennessee I began to realize what I didn’t know. Now I make more of an effort to keep up with tort law developments nationally so that I can share what I learn on this blog – and once again find out how much there is to know.
The goal of this blog has always been to help lawyers keep up-to-date with developments in tort law in Tennessee and across the nation. In the coming months I am going to make an effort to add to the Blue Chippers List – people seem to like this feature. If there is other information you would like me to seek out and share please let me know.
New Tennessee Supreme Court Opinion on “Foreign Object” Exception to Medical Malpractice Statute of Repose
The Supreme Court of Tennessee issued an important ruling on the “foreign object” exception to the medical malpractice statute of repose and statute of limitations. The case is Chambers v. Semmer, M.D., and deals with what exactly constitutes a foreign object. The plaintiff’s theory in the case is that a hemoclip was negligently placed on her ureter during a surgery and left there, later causing her left kidney to fail. The defendants countered that they did not leave any hemoclip on the plaintiff’s ureter, but that “hemoclips are used intentionally and are intended to remain permanently,” so they could not be foreign objects. The Supreme Court rejected the defendants’ argument, ruling “that a hemoclip that is intentionally used but negligently placed and negligently left in a patient’s body following surgery may be a “foreign object” under Tennessee Code Annotated section 29-26-116(a)4) that establishes an exception to the one-year statute of limitations and the three-year statute of repose.”
Read more about the opinion at our firm’s Tennessee Medical Malpractice Blog.
Sorry for the Infrequent Updates
I am at my cabin right now struggling with problems with the “internets.”
Medical Negligence
I apologize for the lack of a post Friday and Saturday. Friday morning I was in North Carolina and did not have access to a computer. By the time I made it to the office I had back-to-back conference calls or appointments until 4:15 and just decided to wait until Saturday morning to blog.
Friday night Joy and I went to the cabin. I got up early Saturday morning but for reasons I do not understand I could not get access to the Internet. I spent several hours riding my early birthday present (a Sea Doo RXT) and messing around in the water.
I got up early again this morning and, surprise, the Internet connection is working. So, I decided to bang out this post before Joy and I meet our friend Buzz at 8:00 a.m. to get in some water skiing before the water gets rough