Mass Tort Litigation Blog

E. Coli Linked to Calif. Grower

Article in today's Los Angeles Times -- E. Coli Linked to Calif. Grower, by Rong-Gong Lin II and Ashraf Khalil:

    Spinach from a large California-based farming operation has been tentatively linked to
    a widening bacterial outbreak that so far has caused one death and sickened 93 people
    in 20 states, health officials said Friday.

    One day after the U.S. Food and Drug Administration recommended against eating any
    fresh, bagged spinach because of the E. coli outbreak, Natural Selection Foods of San Juan    
    Bautista, Calif., issued a voluntary recall of all its packaged products containing the
    fresh greens. The company, which bills itself as the largest grower and shipper of organic
    produce in North America, also operates under the name Earthbound Farm.

Wyeth not negligent in hormone drug trial

Article on cnnmoney.com -- Wyeth not negligent in hormone drug trial:

     Jurors in the first trial against Wyeth's hormone replacement drug Prempro found
    that the company was not negligent and did adequately warn patients and doctors
    of the risk of cancer.

    The lawsuit, the first of 5,000 filed against the company to go to trial, charged that
    Wyeth had been negligent in testing, manufacturing and marketing the hormone
    replacement therapy.

    Lawyers for plaintiff Linda Reeves, 67, had also argued that the company failed to
    warn users and doctors about the need for regular screening for cancer and heart
    problems.

High Court to Post Same-Day Transcripts

Article in today's Washington Post -- High Court to Post Same-Day Transcripts, by Charles Lane:

   The Supreme Court announced yesterday that it will make same-day transcripts of its
    oral arguments available free on its Web site, the quickest and most complete public
    access to its proceedings the court has ever offered.

    There is no sign that the court is about to yield to calls for live television coverage,
    which the justices have steadfastly refused. But, in the quiet, tradition-bound world
    of the Supreme Court, yesterday's decision was almost revolutionary, court analysts said.

Guidant Settles Device Suit

Article in today's New York Times -- Guidant Settles Device Suit, by Bloomberg News:

    The Guidant Corporation, the maker of implanted heart devices, settled a fraud suit
    over its recalled defibrillator for an undisclosed amount, a plaintiffs’ lawyer said
    yesterday.

    The trial in the civil suit brought by two plaintiffs, Beatrice O. Hinojosa and Louis E.
    Motal, was scheduled to begin Monday in Corpus Christi, Tex. The plaintiffs claimed
    the company failed to warn them that their implanted heart devices might fail.

2 Republicans in Senate Vow to Block F.D.A. Pick

Article in today's New York Times -- 2 Republicans in Senate Vow to Block F.D.A. Pick, by Gardiner Harris:

    Two Republican senators have promised to block the nomination of Dr. Andrew C. von
    Eschenbach to become commissioner of the Food and Drug Administration, illustrating
    just how difficult filling the top job at the agency has become.

    Senator David Vitter, Republican of Louisiana, said Thursday in an interview that the
    Bush administration must legalize imports of some prescription drugs before he would
    allow the nomination to proceed.

    “It could be from Canada only, or for personal use only, or a pilot or limited program,"
    Mr. Vitter said. “But it has to be meaningful.”

    Senator Jim DeMint, Republican of South Carolina, will block Dr. von Eschenbach’s
    nomination unless the F.D.A. takes steps to remove the abortion drug RU-486 from the
    market, said Wesley M. Denton, Mr. DeMint’s press secretary.

F.D.A. Warns Against Eating Bag Spinach

Article in today's New York Times -- F.D.A. Warns Against Eating Bag Spinach, by Gardiner Harris:

    Consumers should avoid eating fresh bagged spinach after an outbreak of E. coli in
    eight states killed one person and sickened at least 49, federal health officials
    announced Thursday night.

    The outbreak involves a virulent strain of E. coli known as 0157:H7, which produces
    a toxin that can lead to bloody diarrhea, kidney failure and, in rare cases, death.

    State and federal health officials have used genetic screening tools to confirm that
    all 50 people sickened by the disease suffered from the same bacteria, said Dr. David
    Acheson of the Center for Food Safety and Applied Nutrition at the F.D.A.

'Light' smokers seek billions in damages: Suit contends companies allegedly promoted belief lights were safer

Article today on cnn.com -- 'Light' smokers seek billions in damages: Suit contends companies allegedly promoted belief lights were safer:

    U.S. smokers spent as much as $200 billion over more than three decades buying "light"
    cigarettes under the false belief they were safer than regular smokes, an attorney in a
    potential class action lawsuit argued on Wednesday.

    But attorneys for tobacco companies countered there was no way to tell how many people
    relied on such claims in choosing "light" cigarettes.

    The arguments were made in a hearing in a federal lawsuit that accuses tobacco
    companies of violating racketeering laws and defrauding customers into thinking
    "light" cigarettes were safer than regular brands from 1971 to 2004, when the lawsuit
    was filed.

Vioxx-Like Risks Linked to Another Pain Pill

Article in today's Los Angeles Times -- Vioxx-Like Risks Linked to Another Pain Pill, by Denise Gellene:

    The widely used pain reliever diclofenac poses the same cardiovascular risk as
    the withdrawn drug Vioxx and should not be used by people with heart disease
    or high blood pressure, researchers reported Tuesday.

    Diclofenac, an older drug sold as Cataflam or Voltaren, increased patients' chance
    of heart attack by 40%, according to an analysis of 23 clinical studies — the same
    risk observed in patients who took low doses of Vioxx.

    The report was released early by the Journal of the American Medical Assn. because
    of its health implications.

On Teaching 9/11

All of us who teach subjects such as torts and mass tort litigation have likely this week considered our special responsibility and opportunity to discuss in class the terrorist attacks of September 11, 2001.  Apart from being the catalyst for two wars and radical changes in American and international political life and culture, the attacks of September 11 were also a mass tort that took without warning the lives of 2,973 people, many of whom left behind deeply traumatized families.  In addition, a recent study concluded that nearly 70% of those who worked at Ground Zero after the attacks now suffer from respiratory ailments, and the death of a New York police officer has been determined to have been caused from his inhaling toxic dust at the site after the attacks.

Although we are teachers of cases involving personal injuries, 9/11 poses particular challenges as a topic of classroom discussion because our students', and our own, emotional wounds may still be unhealed.  For those of us who were in or around the attack sites in New York, Washington, or Pennsylvania, or who personally knew victims, undertaking such discussions may be more difficult still.  On the morning of September 11, I sat in disbelief looking at the burning Twin Towers from my office window in Times Square in New York and saw the first tower fall.  That event, and the difficult period that followed -- learning of neighbors who had died and trying to resume life in the tumult that followed in New York -- made me reluctant to discuss 9/11 in class.

Nevertheless, I believe discussing 9/11 in class is worth navigating such emotions.  Of course, 9/11 provides a lens for discussing tort concepts, goals, and alternatives.  For example, my torts class, after initial hesitation, leapt into analyzing potential claims for intentional torts and negligence stemming from the attacks.  We then discussed why Congress created the 9/11 compensation fund, rather than simply defer completely to traditional tort litigation, and talked about the extent to which the 9/11 fund effectuated tort goals.  In my mass tort litigation class, we also discussed the reasons why 9/11 tort solutions may or may not be possible for other mass torts.

But as important, 9/11 also provides an opportunity for students to see in their own pain a shared humanity with the type-faced tort victims who populate our casebooks, and with bystander victims of emotional distress, whose suffering the tort system for many reasons has been reluctant to recognize.  I recall Judge Guido Calabresi saying that he saved such identification of the student with the victim for the last day of his torts class, because a measure of distance and humor are essential if the class is to discuss such serious personal injuries throughout the course.  I share Judge Calabresi's fondness for humor and professional distance in discussing tort cases, and recognize the risk of personalizing too closely the cases we read.  But surely the significance of 9/11, for torts in particular and our society generally, is worth taking that risk.

I welcome comments anyone might be interested in posting with their thoughts on, or approaches to, discussing 9/11 in law classes.

America Marks a Grim Anniversary: President Visits Three Sites Where Nearly 3,000 Died

Article in today's Washinton Post on the fifth anniversary of the attacks of September 11, 2001 -- America Marks a Grim Anniversary: President Visits Three Sites Where Nearly 3,000 Died, by Michael Powell, Josh White and Theresa Vargas:

    In three wounded communities yesterday, the nation commemorated the worst
    terrorist attack in American history, as bells sounded, thousands murmured prayers
    and the families of victims once again read the names of their lost loved ones.

    On the fifth anniversary of the Sept. 11 hijackings, there was an aching familiarity to
    the rituals. In New York, family members recited 2,749 names, punctuated by violins
    and the wail of bagpipes, to the drawn and tearful faces of the families of the victims.

Philip Morris Says Nicotine Fluctuates Naturally

Article in today's Washington Post -- Philip Morris Says Nicotine Fluctuates Naturally, by the Associated Press:

    Philip Morris USA, the nation's largest cigarette maker, is disputing a study by the
    Massachusetts Department of Public Health that found that nicotine levels in cigarettes
    rose about 10 percent from 1998 to 2004.

    Philip Morris said in a written response late last week that its review of nine years of
    data it provided to the state found fluctuations in nicotine levels, but no steady increase.

Vioxx’s Heart Risks Were Unique, Studies Suggest

Article in today's New York Times -- Vioxx’s Heart Risks Were Unique, Studies Suggest, by Alex Berenson:

    Vioxx, which is no longer on the market, may have posed unique heart risks that
    similar painkilling drugs, including Celebrex, do not share, according to two papers
    published Tuesday by the Journal of the American Medical Association.

    In one paper, three researchers at Harvard University examined 114 clinical trials of
    Vioxx and other drugs and found that Vioxx was linked to substantially higher rates
    of high blood pressure than was Celebrex, which is still sold.

    In the other paper, two Australian researchers found that Vioxx appeared more dangerous
    than Celebrex or several older painkillers in observational studies, which attempt to
    examine the safety and effectiveness of drugs in real-world settings after they are
    approved.

Next Vioxx Trial Set to Get Under Way

Article in the Washington Post -- Next Vioxx Trial Set to Get Under Way, by Janet McConnaughey of the Associated Press:

    The next federal Vioxx trial, which opens in federal court here on Monday, focuses
    on a man who began taking the painkiller after its label said that it could increase
    the risk of heart attacks.

    But Robert Garry Smith, 56, said he didn't realize the drug, once a blockbuster for
    Merck & Co., might have brought on his February 2003 heart attack until he saw a
    lawyer's television advertisement in 2005.

    "I was a perfectly healthy man until I took Vioxx and I had a heart attack," Smith, a
    maintenance supervisor at a chemical plant in the Cincinnati suburb of Covington, Ky.,
    aid in a pretrial deposition.

Congress Criticizes Federal Response to Illnesses After 9/11 and Seeks More Spending

Article in the New York Times -- Congress Criticizes Federal Response to Illnesses After 9/11 and Seeks More Spending, by Anthony DePalma:

    After listening to recovery workers at ground zero and downtown residents
    emotionally describe how they had been ignored and insulted as they sought
    help for health problems after 9/11, members of a Congressional subcommittee
    roundly criticized the federal response yesterday and called for sharply increased
    medical spending.

    Subcommittee members, joined by Senators Hillary Rodham Clinton and Charles
    E. Schumer, accused the Bush administration of ignoring the health problems that
    arose among workers who toiled at ground zero and the claims of downtown residents
    who say they were also sickened by the dust. The administration has done little to
    prepare for a similar disaster in the future, they said.

    “Today it appears the public health approach to lingering environmental hazards
    remains unfocused and halting,” said Representative Christopher Shays, a Republican
    from Connecticut, and chairman of the House Subcommittee on National Security,
    Emerging Threats and International Relations, which held the hearing in Lower
    Manhattan, a block from ground zero. “The unquestionable need for long-term
    monitoring has been met with only short term commitments.”