Click here to read about yet another example of a greedy trial lawyer filing a frivilous lawsuit for a greedy plaintiff.
Rule 407 – Subsequent Remedial Measures
Subject to several exceptions, Rule 407 prohibits the introduction into evidence of subsequent remedial measures. The Third Circuit Court of Appeals has just joined several other circuits in holding that the exclusionary rule does not apply when the remedial measures are made by a third party.
Judge Smith wrote that “The rule recognizes that manufacturers will be discouraged from improving the safety of their products if such changes can be introduced as evidence that their previous designs were defective.” He went on to say that “this policy is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit.” Judge Smith explained that every federal circuit to address the issue — the 1st, 4th, 5th, 7th, 9th and 10th — has likewise concluded that Rule 407 does not apply to subsequent remedial measures taken by a nonparty.
OSIs
They are called OSIs – other similar incidents. Plaintiffs try to get them admitted into evidence in products liability cases to show evidence of defect and knowledge of defect. The incidents must be “substantially similar” and there is (almost) always a fight over what falls within that catergory.
Here is a recent opinion from the Eighth Circuit that upheld the admissibility of OSIs in a products case involving use of a rachet system on a motor vehicle carrier.
Auto Death Rates Down
Good news. Overall, the Department of Transportation said alcohol-related fatalities fell 2.4 percent, from 17,105 in 2003 to 16,694 in 2004. 42,636 people died on the nation’s highways in 2004, down 248 – or 0.6 percent – from the previous year. Read a more complete summary of the data here.
There was some bad news. Motorcycle death rates increased for the seventh straight year. Rollover deaths also increased.
I would like to think that the tort system has contributed to a decline in the death rate. Highways and vehicles are safer in part because litigation has forced the issue with government agencies and manufacturers and brought problems to light. To be sure, consumer groups have also played a role in advocating for better roads and vehicles, but the tort system provides the economic incentive for people to do the right thing.
Medical Monitoring
What do you do when you represent people who have been exposed to a dangerous substance but to date have not experienced an injury? Some lawyers have brought what is known as a medical monitoring claim, asking that the defendant be required to pay money to monitor the health of the plaintiff to identify and then treat health problems related to the exposure.
Plaintiffs in that situation are in a tough spot. If they wait until they suffer an “injury” there will be an argument that a statute of limitations or a statute of repose has run. If they file suit too early the defendant argues that the plaintiffs have not been injured and therefore do not have standing to bring a claim.
What is the state of the law on this issue? The Supreme Court of Michigan has just ruled that plaintiffs may not bring this type of claim. In Henry v. The Dow Chemical Corp. plaintiffs claimed that they were exposed to dioxin and needed medical monitoring. Dioxin is known to cause cancer, liver disease, and birth defects. The State of Michigan determined that the most likely source of the contamination was Dow’s Midland plant.
ATLA Convention
I ran into fellow blogger David Swanner of the South Carolina Trial Law Blog in Toronto. He was kind enough to grab me as I was walking along oblivious to my surroundings and introduce himself. He has a great blog and a great collection of powerpoint presentations from various lawyers. He will give you a copy of the powerpoint presentations if you ask.
The Convention was a real treat. I have attended the last 21 ATLA Annual Conventions and I have learned many valuable things at each one of them. ATLA has a new commitment to educating the public of the value of the civil justice system. It will be a long, expensive process but, I suggest, one worth the effort. We have to win back the hearts and minds of the jurors.
If you represent plaintiffs and are not a member of ATLA you should join. Not only will you get a great return on your money, but you will also help support the good fight.
Wisconsin’s Med Mal Decision Upsets Doctors
The Wisconsin Supreme Court struck down the state’s med mal cap, saying that even under the rational basis test the cap did not meet constitutional muster. The med mal insurances companies and the docs are upset. What the insurance companies and the doctors don’t understand is that rational basis does not mean “any ole reason that some lobbyist and pr flack can speculate about” – at least not to real judges who take their job as guardians of the right to trial by jury seriously.
Class Action for Third-Party Payors of Vioxx
A New Jersey state court trial judge has certified a nationwide class action on behalf of unions and other third-party payors of health claims in a lawsuit alleging that the companies would not have paid for Vioxx had they been warned of the dangers of it. The suit is brought under the NJ Consumer Protection Act. Merck is headquartered in New Jersey.
The judge wrote that “there are significant factual and legal issues common to all class members to make adjudication through class action fair and efficient. Having each individual class member attempt to litigate their claims (separately) would result in needless duplicative discovery, undue expense to the parties as well as an undue burden on judicial economy.”
Although the merits of the litigation have not been decided, the right to bring the case as a class action is a major victory for the plaintiffs.
Vioxx Witness Update
I wrote yesterday that a trial judge was going to permit the pathologist who performed the autopsy of the plaintiff’s decedent in the Vioxx case to testify.
How important is that testimony to the plaintiff? Well, a good guage of that is that Merck has appealed the decision in the middle of the trial. The court of appeals denied the request for review, and Merck appealed to the Texas Supreme Court.
How can Merck claim surprise when the doctor was on its witness list?
Vioxx Trial
One of the big fights in the Vioxx trial underway in Texas is the cause of death. The Plaintiff has been granted permission to have the pathologist who did the autopsy testify – and she is giving great testimony that supports the plaintiff.
Here is the complete article:
KRISTEN HAYS
Associated Press