Here is the most recent news on the Vioxx trial currently underway in New Jersey.
The author clearly does not understand the law of directed verdict.
Proposed Rule Change
The Civil Rules Commission in Tennessee has proposed to change Rule 8 of the Tennessee Rules of Civil Procedure and require a plaintiff to state an ad damnum.
Under current law, a plaintiff probably must state an ad damnum at some point, except in medical negligence cases. Why do I say a plaintiff probably must do so? The law is unclear. Nothing in the rules requires an ad damnum but Rule 15 prohibits a plaintiff from moving to amend the complaint post-verdict to increase the amount sued for. The concern is that if no specific amount is listed the amount of the verdict may be capped by whatever amount is in the complaint and if the only amount listed is, say, the jurisdictional amount some court somewhere might apply that as a cap. Once again, there are no cases on point (except in the medical negligence area).
I am opposed to the proposed rule change and, in fact, I do not think a plaintiff should be able state the amount sued for in the complaint. No good can come of it. I intend to write in opposition to the proposed rule. If you want to do so, write to the Supreme Court Clerk.
Medical Monitoring
When you can’t prove a current injury but can prove that, because of the fault of another, you need to be regularly followed by a health care provider you seek damages for “medical monitoring.” The claim arises is toxic tort and products liability cases.
In a case of first impression, the Sixth Circuit Court of Appeals has ruled that Tennessee law would recognize a cause of action for medical monitoring. The court said “there is something to be said for disease prevention, as opposed to disease treatment. Waiting for a plaintiff to suffer physical injury before allowing any redress whatsoever is both overly harsh and economically inefficient.” (Emphasis supplied). The case, Sutton v. St. Jude Medical S.C., Inc., was brought as a class action on behalf of a proposed class of persons who underwent cardiac by[ass surgery using a medical device called the Symmetry Bypass System Connector.
Read more here.
Sunday Spoof – Merck and Hurricanes
A spokesman for Merck announced today that its scientists have discovered a link between between recent hurricane activity in the Gulf of Mexico and the lawyers that are suing the company over its multi-billion dollar drug, Vioxx.
“The scientists have Merck have determined that greedy trial lawyers are the cause of Katrina and Rita,” Merck spokesman Phillip (“Flip”) Glanton said in a press conference earlier today. “Congress must act immediately to stop greedy trial lawyers from filing frivilous lawsuits before the entire Gulf Coast is destroyed.”
When pressed to explain the link between well-known Acts of God that have existed for centuries and trial lawyers, Glanton handed out a 215-page, single-spaced document that he said was prepared by Merck’s best scientists. “Our team of scientists has found that a Category 4 hurricane did not hit New Orleans until after the Vioxx litigation was consolidated in the federal courts in New Orleans. Greedy trial lawyers filed the Vioxx lawsuits, and therefore they are the cause of Katrina. It is a scientific fact.”
It Never Stops
How can some members of the Republican Party take a national disaster and turn it into a windfall for corporate America?
No-bid contracts for companies working to clean up the mess caused by Katrina? Of course, but there is more. Eliminate the need to pay the prevailing wage? Sure.
How about tort reform?
Absence of Other Incidents
A defendant in a product liability case cannot introduce proof of the absence of other claims unless strict guidelines are met, according to the Third Circuit Court of Appeals.
The plaintiff’s lawyer “argued that there was no foundation for such testimony because [defendant’s] engineer had admitted in his deposition that [it] kept no records relating to either safety complaints by [its] customers or past accidents involving [the product involved in the incident].”
Judge Smith said “Most courts admitting evidence of the absence of prior accidents in product liability cases have done so only where the testifying witness, usually an employee of the product manufacturer, has testified that (a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (c) to the witness’s knowledge, no such prior accidents have occurred.” Judgment in favor of the defendant was reversed.
Conflicts
The NYT has a great article today about the issue of conflicts between physicians and the medical device industry. The information about the cost of medical devices and the disparity between the costs of the devices at different hospitials is shocking.
Propaganda Working
A recent poll indicates that many Americans think that they are being “overtreated” by their doctors.
An article describing the poll results says that “[n]early three-quarters (72%) of U.S. adults think that patients who have medical conditions experience problems because of being overtreated (i.e., getting too many treatments or getting more aggressive treatment than is appropriate). In light of these concerns by the public, it’s not surprising to learn that half (50%) of all adults are somewhat or very concerned, personally, about being overtreated when they are sick or in need of medical care.”
One thing particularly troubling about this poll: 53% of adults think that one reason for the overtreat is because of concerns about malpractice suits. The propaganda is working. This is what can happen when you have the ability to spend millions and millions of dollars over thirty years to influence public opinion.
The Real World
Are you one of those people who say that politics doesn’t matter to you or your practice? Do you refuse to get involved in political campaigns? Do you “just say no” to a request for a political contribution?
Well, those who want to take away the rights of your clients have a different view. Excample: Michigan. Michigan tort law is a shadow of its former self. The Legislature has gutted the common law of torts in Michigan and the Michigan Supreme Court readily and frequently irrigates the open wound.
This article from the Free Press gives you an idea of the frustration that the lay public is beginning to experience.
Vioxx Trial – New Jersey
Read this nice article about Chris Seeger, lead trial counsel in the New Jersey Vioxx trial. I have known Chris for 10 years or so – he is a great guy with a passion for what he does. He will give Merck one heck of a fight.