No substantive post today. I went to Knoxville last night to attend a mediation today (Thursday) of a case I am involved in Maryville.
The case did not get resolved but I enjoyed getting to spend some time with my co-counsel (from Seattle) and our client.
The Missouri Court of Appeals has reversed a jury verdict entered in favor of a brain damaged woman and her husband. The two argued a 1993 Cutlass had a defective cruise control which caused a wreck that injured the woman.
The appellate court held that the trial judge should not have permitted 139 prior incident into evidence because they were not sufficiently similar to the accident at issue. The court also ruled that punitive damages were not appropriate in the case. (Under Missouri law, “punitive damages are appropriate, therefore, only when the defendant’s conduct is outrageous due to evil motive or reckless indifference to the rights of others, which must be proven by clear and convincing evidence”.)
Importantly, however, the appellate court did hold that the plaintiffs presented “evidence that Mrs. Peter’s accident was not “an operator created incident,” that the cruise control mechanism located on the Peters’ vehicle was defectively designed and dangerous; that a single transient fault actuated the throttle of the vehicle and caused the accident; that the vehicle accelerated from the tree to the planter after Mrs. Peters was unconscious and, therefore, was unable to press the accelerator with her foot; that General Motors engineers became concerned in the late 1980s that the cruise control system might cause sudden unwanted acceleration and recommended that General Motors install another type of system; and that General Motors had never warned customers about the defective nature of the cruise control system, the evidence was sufficient to make a submissible case of strict liability — design defect, strict liability — failure to warn, and negligence.”
Read more about the American Heart Association’s new CPR and ECC guidelines at this post our medical malpractice blog.
The House of Representatives is trying to limit the right of tort victims again.
This time, the effort is to give even greater power to holders of ERISA subrogation interests.
The House has passed a pension bill (H.R. 2830) that included this language:
When we think of “tort reform” we usually think of insurance and corporate lobbyists trying to convince legislators to limit the ability of people to sue wrongdoers for personal injuries or wrongful death.
But the fight is much broader than that, as evidenced by this press release from the National Conference of State Legislators. Now, the FDA is considering a rule that would limit the liability of drug manufacturers from failure-to-warn suits if the drug’s label was approved by the FDA. The rule would pre-empt state law, including state common law.
The FDA has argued before that its approval of medical devices pre-empted state law claims. The claim has been rejected in drug cases in the past.
People with injury claims against Guidant are learning more and more about how the company did business – and the news for Guidant is not good.
This article reveals that a former employee is talking and says that the company set “unrealistic” goals for production of pacemakers and defibrillators.
When a employee is working on the property of another and is injured there is always a fight over whether the employee can sue the property owner who hired the injured person’s employer to perform the work.
Here is a case out of California that the issue this way: “when, if ever, is a landowner that hires an independent contractor liable to an employee of that contractor who is injured as the result of hazardous conditions on the landowner’s premises? Specifically, in this case we must decide whether a carpenter employed by an independent contractor that installed scaffolding for workers who replaced asbestos insulation in an oil refinery facility
may sue the refinery owners for injuries caused by exposure to asbestos, when it is claimed that only the refinery owner knew the carpenter was being exposed to a hazardous substance.”
The 33-page opinion gave rise to this result: “a landowner that hires an independent contractor may be liable to the contractor’s employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting
hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition.” [Footnote omitted.]
“An appeal is frivolous when it “has no reasonable chance of success,” Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977), or is “so utterly devoid of merit as to justify imposition of a penalty,” Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978).” I see one or two tort decisions a year in Tennessee where damages are imposed under the “frivilous appeal” statute.
Here is one.
Plaintiff sought compensatory and punitive damages against a pharmacy for mis-filing a prescription. A discovery fight ensued. One letter from Plaintiff’s counsel included the following language:
Here is a good reason never to refer to someone by a nickname in private unless you would feel comfortable calling him that name to his face.
The Vioxx litigation is heating up in a public way again.
There is a trial in state court in Texas involving the death of a 71 year old man – he allegedly took 25 mg of Vioxx daily for seven days sometime in the last 30 days before he had an MI. The trial starts January 24
The first federal MDL trial that was mis-tried in Houston will be retried in New Orleans on February 6.
