Well, round two starts on Monday in New Jersey. This case appears stronger on causation that the Texas case, but now Merck has a good idea about what will be coming. Then again, so do the plaintiff’s lawyers.
Here is a nice summary of the case.
Standards in Products Litigation
What does the industry say about how a product should be manufactured? Look to this site as a resource for product safety research.
The site also has links to information about problems with medical devices, product recalls, and patent data.
Thanks to Bob Kraft for bringing this site to my attention.
Nursing Home Patient Dies of Sun Exposure
Ms Matney, a MS patient residing in a nursing home, died from over exposure to the sun. Her daughter has filed suit against the nursing home.
The Toledo Blade reports that Ms Matney was permitted to sunbathe on a day where the temperatures exceeded 93 degrees. Her body temperature rose to 109 degrees. The county coroner has ruled the death accidental due to negligence; the cause of death was hyperthermia and heat stroke.
Blue Chipper – Summary Judgement
McCarley v. West Quality Food Service, Inc., 960 S.W.2d 585 (Tenn. 1998) is one of my favorite blue chippers because it is a double-chipper.
First, McCarley made it possible for a plaintiff to actually win a food poisoning case without having retained a sample of the product that caused the injury.
Second, and more important in the day-to-day life of trial lawyers, McCarley was the first decision to require that a party seeking summary judgment actually had to have some evidence establishing an affirmative defense or defeating an element of the opponent’s claim before the burden shifted to the opponent. After this decision, a defendant could no longer file a one-paragraph motion and brief and say “prove it;” instead, the defendant had to say “this undisputed evidence right here says you can’t prove it or, even if you can, this undisputed evidence establishes an affirmative defense that you can’t beat.” (Of course, either party can still file a motion on a pure issue of law.)
Tort Law Tidbit – Weather
Need to know the weather at a given date, time and place? Go to Weather Underground, type in the zip code or name of the location you want, and then scroll down to “History and Almanac.” Enter the date and find more data than you can imagine.
Death of the Chief Justice
Read here for an analysis of the impact of the death of Chief Justice Rehnquist.
Sort of Off Topic
But not really. Forseeability in tort law is a complicated concept, but one thing is undeniably true: for a duty to arise or legal cause to exist one need not be able to (or actually) foresee the precise type of harm that resulted. Instead, one only need be able to foresee that the risk of harm would arise. A shopping center defendant sued for negligent security in its parking lot cannot (successfully) say “well, I knew there has been and would be car thefts and car break-ins in our lot, but it never crossed my mind that someone would be raped there.”
The Bush Administration is now claiming that the government’s slow response is because it had no idea that the devestation would be so bad.
Well, read this release from the National Weather Service from Sunday, August 28, 2005:
The Definition of Product
Can a product that is not completely installed be a product? The 3-judge panel of the Pennsylvania Superior Court said “yes.”
Sprinkler systems were being contructed in a three huge warehouses for documents storage. Although the sprinkler system was “admittedly incomplete,” the sprinkler system was issuing “material and test certificates” for those portions of the buildings were the documents were actually being stored. Hence, the Court said, the sprinkler system was a “product” and strict liability law was applicable.
Read an article about the case here.
Katrina Relief Contributions
I know that you are going to contribute to a Katrina relief fund – that is the type of person who reads this blog – but I urge those of you who are lawyers to do so through Trial Lawyers Care, an ATLA affilliated organization. Go here to help.
Trial lawyers do care, and one way to demonstrate that to people who don’t think so is to show our generosity collectively. Trial Lawyers Care gave tens of millions of dollars of free legal services to 9-11 victims; the people along the Gulf Coast are now in need.
Tragedy to the South
Our hearts go out to those we know and those we don’t in our sister states to the south. I cannot imagine what those folks – and their families across the nation – are going through right now.
No substantive post today.