Here is probably the best article I have read about the status of Vioxx litigation after the New Jersey verdicts.
Lynn Swann Calls for Tort Reform
Lynn Swann, Republican candidate for Governor of Pennsylvania, has called for tort reform. Read more here.
Yet another reason for me to dislike the Steelers (except the Bus – I think the Bus is fantastic.)
Thanks to Torts Prof Blog for bringing this article to my attention.
Drug Sharer to Face Jury
Mr. Kasey shared his Oxycontin with another, who gave it to her boyfriend (at the same party) who it turn consumed the drug with alcohol. The recepient/user died in his sleep from the combination of the drugs. His mother sued Kasey.
Kasey defended by arguing that he did not owe a duty of care to the decedent and that his conduct was not the proximate cause of the death.
The Arizona Court of Appeals held that a duty was present, saying as follows:
Error to Show Photos of Vehicles in Minor PD Case
Here is another decision that makes it reversible error to show photos of vehicles involved in a wreck, point out minor property damage, and then argue that the plaintiff could not have been injured.
The New Jersey Appellate Division said this:
“Given the narrow field of dispute, the photographs served no apparent purpose other than to suggest the accident was low-impact and minor and, therefore, not the cause of plaintiff’s condition. For reasons already advanced, we find this inference impermissible absent an expert foundation. And lest there be any doubt as to defendant’s real purpose, counsel referred to the accident as a “fender bender” on three separate occasions in her opening and closing remarks. Clearly, this argument played a prominent role in the defense, especially in light of the polarity of medical views on causation, and was identical to that found objectionable in Davis. By the same token, nowhere in her argument did defense counsel explain to the jury how, based merely on the extent of property damage, a fact finder could assess the origination of plaintiff’s injury or whether any pre-existing condition she may have had was exacerbated by the impact. In any event, defense counsel’s argument clearly transgressed what was to be, at least according to the trial court’s tacit understanding, the limited use to which the photographs would be put. Even more significant, however, counsel’s commentary contradicted her own medical expert who opined no such connection or correlation between impact and injury exists. Under the circumstances then, we conclude that the introduction of the photographs without appropriate limiting instruction, when considered together with counsel’s uncured comments thereon, allowed the jury to speculate, unguided by any expert basis, as to the cause of plaintiff’s injuries, and thus created a clear capacity for an unjust result.”
Lanier v. Merck, Round 2, Post 21
The jury has punitive damages under consideration. Read more here.
Patient Wins Doctor’s Case Against Insurance Company
This doctor got hit for an excess verdict in a medical malpractice case. He assigned the patient his bad faith claim against his insurer, alleging that it refused to settle the case within the policy limits and assigned him a lawyer with a conflict. The patient won compensatory and punitive damages. The case is Jurinko v. The Medical Protective Company, No. 03-CV-4053 (E.D. Pa. March 29, 2006).
The trial judge affirmed entry of judgment and issued the opinion including the following remarks:
“[Defendant] Medical Protective employee James Alff admitted that he knew that [the original defendant] Dr. Marcincin’s exposure was in excess of $50,000, and yet he never offered more than $50,000.9 The jury also heard testimony that the [excess] CAT/MCARE fund had informed Medical Protective that their failure to tender was in bad faith and was undermining the settlement of the case. Alff admitted that Dr. Marcincin could not negotiate with funds from his $1 million secondary line of coverage (the CAT/MCARE fund) without tender of the full policy limits. Alff also admitted to unfair gamesmanship in his negotiating tactics, and attempting to get the CAT/MCARE fund to cover Dr. Marcincin’s liability from Dr. Edelman’s line of coverage in order to save Medical Protective money. The evidence demonstrated that both Alff and Jacqueline Busterna, who was negotiating for the CAT/MCARE fund, believed the case would settle for around $1 million. From the evidence presented, it was also possible for the jury to conclude that the Jurinkos would have been offered approximately $1 million had Medical Protective tendered its policy, even if the CAT/MCARE fund had not offered any money from Dr. Marcincin’s $1 million line of secondary insurance. Overall, the Court finds sufficient evidence for the jury to find bad faith.
Lanier v. Merck, Round 2, Post 22
The New Jersey jury awarded $9.0 Million in punitive damages.
Perfect. Within the range of reason. Merck will suffer the sting of the shilling but not be able to argue that it took a head shot. Recall that punitives were capped at $22.5M.
Nice work.
Off Topic – A Political Comment.
Read this, please:
“John Fund [of the WSJ], after discussing how disgruntled the GOP base may be, has it exactly right: ‘Republicans have appeared to the world to be as unprincipled and rudderless as the politicians they campaigned against back in 1994. Unless they change course dramatically in the seven months between now and Election Day, they may well find themselves facing the same fate as the Democratic political dinosaurs of that year that they replaced.’ I’m disgruntled, too, and I’m going to get it all of my chest this morning: I’ve never voted for a Democrat in a general election in my life, and I don’t expect to anytime soon, but it’s been impossible for me over the past couple of years to get enthused about the Republican party. I voted for President Bush twice, and contributed to his campaign twice, but held my nose when I did it the second time. I don’t consider myself a Republican any longer. Thanks to this Administration and the Republicans in Congress, the Republican Party today is the party of pork-barrel spending, Congressional corruption – and, I know folks on this web site don’t want to hear it, but deep down they know it’s true – foreign and military policy incompetence. Frankly, speaking of incompetence, I think this Administration is the most politically and substantively inept that the nation has had in over a quarter of a century. The good news about it, as far as I’m concerned, is that it’s almost over.”
From the National Review ….
Full Recovery of Medical Expenses Permitted
The Arizona Court of Appeals has decided that a plaintiff can recover the full value of her medical bills in a tort case and that the amount of the bills should not be reduced by contractual discounts. The case is Lopez v. Safeway Stores, Inc. (2 CA-CV 2005-0057, 2/28/06).
The opinion includes a survey of law from other states on this important issue. Read it here.
Off to Knoxville
I am a little late in posting today because I have been busy preparing for a speech and panel discussion in Knoxville. The Tennessee Journal of Law & Policy is honoring Justices Drowota, Anderson and Birch today; I have been invited to speak about the impact that these gentlemen have had on Tennessee tort law. I am honored to have the opportunity to participate in this program.
To get ready I read tort opinions for an hour or so last night and started again at 4:30 this morning. Tort law has come a long way in Tennessee since 1990, and these gentlemen played a major role in advancing the cause of justice in Tennessee.
Justice Drowota retired last year and Justices Anderson and Birch retire at the end of August. They will be sorely missed.