I hope each of you had a wonderful Labor Day Weekend.
My wife and I spent the weekend at the lake. Saturday and Sunday I did no work whatsoever, the first time in months I have taken two days off in a row with absolutely no work. Monday I was back at it (depositions today) but even then I did not have to put in a full day.
I need to get back to the days when I took the weekends off. I intend to do so. Soon.
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.
Wennesday was an 18+ day and today gives rise to hearings in Clarksville in the morning and an important deposition in Brentwood in the afternoon.
Pardon me, folks, but I am taking a day off.
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 Tennessee Supreme Court has issued an extremely important decision in the field of bad faith law.
In Johnson v. Tennessee Farmers Mutual Insurance Company, No. E2004-00250-SC-R11-CV (August 28, 2006), Justice Holder, writing for an unanimous court, reversed the Court of Appeals and upheld a bad faith verdict against Tennessee Farmers.
Johnson sued his own insurer after he got hit for an excess judgment in an auto case. A 2-1 decision of the Court of Appeals took away a plaintiff’s verdict of $279,430.92 against Tennessee Farmers, saying that the trial judge had not charged the jury correctly on the law of bad faith. Judge Lee dissented, saying the trial judge had gotten it right.
Dr. Bill Frist, who serves both as Majority Leader of the United States Senate and Founder and CEO of APCDBAV (Association of Physicians Capable of Diagnosing Brain Activity Via Videotape), applied for renewal of his medical license in Tennessee, pledging that he met the CME requirements of the State.
This article suggests that he did not.
The excuse? "’As a result of a change in Tennessee’s regulations several years after Dr. Frist came to the Senate, he may be required to complete additional continuing medical education hours,’ spokesman Matt Lehigh said in a statement. ‘A representative of the Tennessee Board of Medical Examiners has been contacted, and Dr. Frist will meet every requirement of the Board.’"
The case: Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000). Author: Justice William M. Barker.
Why it is a Blue Chipper: Lavin v. Jordan is the leading case on the liability of parents for the willful or malicious tortious acts of their children. It is important to note, however, that despite some rather broad language in Lavin the Eastern Section of the Tennessee Court of Appeals has recently held that neither Lavin nor the statute referenced below are applicable in cases where the child negligently causes injury or death.
The bottom line:
Former Justice Penny White, former Judge Joe Riley and I are holding our civil trial practice seminars again this Fall.
We started Justice Programs three years ago with the idea that, with increasing specialization in the Bar, a large number of people would prefer to attend an "annual review" program that was focused on the law of interest to civil trial lawyers. Attendance at the seminars have exceeded our expectations and have grown by leaps and bounds each year. We believe that this year’s program will be even better than the one we offered last year and registrations are already flowing into our headquarters in Ripley.
Here is our schedule for 2006:
Damage paid for personal injury claims are not taxable, right? Wrong. Damages paid for personal injury claims "“on account of personal physical injuries or physical sickness” are not taxable. 26 U.S.C. § 104(a)(2). Damages paid for purely emotional injuries are taxable, at least in the opinion of the IRS.
Now, along comes Murphy v. Internal Revenue Service, No. 05-5139 (D.C. Cir. August 22, 2006). Murphy received "damages for emotional distress and loss of reputation she was awarded in an adminstrative action she brought against her former employer." She was asked to, and did, pay taxes on the award, and then sued to get her tax payments back. She tried to argue that the payments fell within the exclusion of § 104(a)(2), but that failed. However, the Court held that "§ 104(a)(2) is unconstitutional as applied to her award because compensation for a non-physical personal injury is not income under the Sixteenth Amendment if, as here, it is unrelated to lost wages or earnings."
The Court said "it is clear from the record that the damages were awarded to make Murphy emotionally and reputationally “whole” and not to compensate her for lost wages or taxable earnings of any kind. The emotional well-being and good reputation she enjoyed before they were diminished by her former employer were not taxable as income. Under this analysis, therefore, the compensation she received in lieu of what she lost cannot be considered income and, hence, it would appear the Sixteenth Amendment does not empower the Congress to tax her award." It went on to say that "every indication is that damages received solely in compensation for a personal injury are not income within the meaning of that term in the Sixteenth Amendment. First, as compensation for the loss of a personal attribute, such as wellbeing or a good reputation, the damages are not received in lieu of income. Second, the framers of the Sixteenth Amendment would not have understood compensation for a personal injury — including a nonphysical injury — to be income. Therefore, we hold § 104(a)(2) unconstitutional insofar as it permits the taxation of an award of damages for mental distress and loss of reputation."
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.
