Mass Tort Litigation Blog

Heart Device Warning May Change

Article in today's Los Angeles Times -- Heart Device Warning May Change, by the Associated Press:

    The Food and Drug Administration is considering not using the word "recall" to warn
    patients and doctors about defective pacemakers and defibrillators at the request of
    a physician group struggling to deal with a loss of public confidence in the safety of
    implantable heart devices.

    FDA officials said they were conducting focus groups to see whether the currently used
    "recall" term was causing undue alarm when used to refer to heart devices the agency
    had decided might be faulty.

Jury rejects man's claim Vioxx caused heart attack

Article in today's Times-Picayune -- Jury rejects man's claim Vioxx caused heart attack, by Susan Finch:

    A federal court jury Tuesday handed New Jersey pharmaceutical giant Merck & Co. Inc.
    a victory in the latest of more than 16,000 lawsuits alleging the company failed to give
    adequate warning to doctors that Vioxx, a popular painkiller it took off the market in
    2004, posed a heart attack risk.

    After a two-week trial and just over two hours of deliberating, jurors rejected the claim
    of Kentucky resident Robert Garry Smith, 57, that his heart attack in February 2003 was
    caused by Vioxx, which he'd taken for about four months for arthritis pain.

The NYT's Melanie Warner Discussing Judge Weinstein Tobacco Class Action Certification

The New York Times' Melanie Warner discussed Judge Weinstein's decision certifying a nationwide lights cigarette class action on the Backstory Program.

Judge Weinstein's Opinion Certifying a Nationwide Lights Class Action

Findlaw has posted Judge Weinstein's 540-page opinion certifying a nationwide lights class action against the tobacco industry, Schwab v. Philip Morris USA, Inc., No. 04-CV-1945 (E.D.N.Y.  Sept. 25, 2006).

Tobacco Makers Lose Key Ruling on Latest Suits

Article in today's New York times -- Tobacco Makers Lose Key Ruling on Latest Suits, by David Cay Johnston and Melanie Warner:

    In a legal blow to the tobacco industry, a federal judge in Brooklyn ruled yesterday
    that people who smoked light cigarettes that were often promoted as a safer alternative
    to regular cigarettes can press their fraud claim as a class-action suit.

    Judge Jack B. Weinstein of Federal District Court in Brooklyn found “substantial evidence”
    that the manufacturers knew that light cigarettes were at least as dangerous as regular
    cigarettes.

    The decision, coming at a time when the tobacco industry felt it was on a legal winning
    streak, raises the possibility that so-called lights cases will become a major threat to the    
    companies and expose them to potentially significant damages.

Strict Liability and the Liberal Justice Theory of Torts

Professor Alan Calnan of Southwestern Law School has posted an interesting working paper, Strict Liability and the Liberal Justice Theory of Torts, on SSRN.  Here is the abstract:

     Ask a group of tort scholars to explain the relationship between fault
    and strict liability and the responses are likely to be sharply split. An
    economist might reply that strict liability - assigned on the basis of
    efficiency - should be the rule and fault, if it is to apply at all, but a
    reluctant and occasional exception. A moralist, however, would likely
    give the opposite opinion - that fault, defined as deontological culpability,
    should be the rule and strict liability the exception.

    Ironically, both economists and moralists often base their views on liberal
    principles. Economists rely on the political dimension of liberalism, arguing
    that government generally should not intervene in free market transactions,
    ut if it must, it should do so only with clear tort rules that minimize accident
    costs. Not surprisingly, moralists rely on the moral dimension of liberalism,
    contending that tort law should promote private rights and freedoms by creating
    and enforcing personal responsibilities.

    Both views, however, share the same three flaws. Methodologically, they are
    one-dimensional (focusing on either the moral or the political, but not both)
    and unilateral (seeking to either punish or deter injurers while virtually ignoring
    the injured). Substantively, they are strangely illiberal (promoting either social
    welfare or a particular conception of the Good).

    In this article, I offer a liberal justice tort theory that avoids these pitfalls. It is
    holistic, encompassing both sides of tort law's dual personality; relational, invoking
    justice concepts that illuminate the bilateral aspects of all torts; and classic, adopting
    a longstanding and mainstream perspective that seeks only to protect and promote
    individual liberty. After recapturing and redefining strict liability, I demonstrate how
    that concept can lay the groundwork for a new metatheory of torts.

    My thesis, in short, is that strict liability is both a moral-political and a substantive-
    procedural concept that must be implemented in a two-step process. The first step
    determines whether the parties' encounter and its effects were consensual. If consent
    exists, the consenter is held strictly liable for her own loss, irrespective of the fault of
    her counterpart. If no consent is found, or if it is not an issue, liberal justice theory
    then implements a scheme of reasonableness, grounded in concepts of strict law and
    equity, to determine the actor's liability. Strict law creates substantive rules that forbid,
    inhibit or sanction certain people, activities or relations that pose the greatest and
    surest threats to freedom and equality. However, even when a person, activity or
    relationship is not covered by a strict substantive rule, equity may episodically impose
    strict procedural requirements on actors who hold an unfair advantage in the trial of
    their actions. Because litigation itself is a threat to the freedom of the loser, the ad
    hoc adjustment of procedural burdens serves to correct an important imbalance
    between the parties and restores them to a state of moral and political equality.

Judge to rule on tobacco class action case

Article on cnn.com -- Judge to rule on tobacco class action case:

    A U.S. judge is expected on Monday to rule on whether to certify as a class action a
    lawsuit that accuses tobacco companies of defrauding smokers into thinking "light"
    cigarettes were safer than regular brands, according to notice sent to lawyers in the
    case.

    U.S. Senior District Judge Jack Weinstein will file his order on pending motions in the
    case known as Schwab v. Phillip Morris USA Inc. by 10 a.m. on September 25, the memo
    said.