Friday, February 26, 2010
After six hours of deliberation yesterday, a Pennsylvania jury reached a defense verdict in the case of Foust v. Wyeth. This case comes on the heels of a number of plaintiffs victories. Just this past Monday a jury issued a verdict for the plaintiff in Singleton v. Wyeth, finding $3.45 million in compensatory damages and $6 million in punitive damages.
In Foust, the jury found for Wyeth on causation. One reason might be this, as reported by The Legal Intelligencer:
In an unusual aspect of the case, Foust's identical twin sister, Carol, took an HRT drug but did not get breast cancer. Both the plaintiffs and the defense sought to use Carol Foust's lack of cancer to their advantage in making arguments to the jury.
You don't see those kinds of facts every day. The jury did find that Wyeth failed to adequately warn consumers about the risk of the drug.
h/t George Conk
Thursday, February 25, 2010
Kyle D. Logue (Michgan) has posted "Coordinating Sanctions in Torts" on bepress. Here is the abstract:
This Article begins with the canonical law-and-economics account of tort law as a regulatory tool, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this regulatory picture of tort law, the Article asks the question how tort law should coordinate with already existing non-tort systems of regulation. Thus, for example, if a particular activity is already subject to extensive agency-based regulation, regulation that already addresses the negative externalities or other market failures associated with the activity, what regulatory role remains for tort law? Should tort law in such cases be displaced or preempted? The answer is: It depends. Sometimes, even in the presence of overlapping non-tort regulation, there is a regulatory role that tort law can play, sometimes not.
For one example, if the non-tort regulatory standard is already “fully optimizing,” in the sense that the regulatory standard (a) sets both an efficient floor and an efficient ceiling of conduct and (b) is fully enforced by the regulatory authority, then tort law arguably should be fully displaced in the sense that no tort remedy should be available for harms caused by such an activity. If, however, the regulatory standard is only “partially optimizing” (for example, it is only an efficient minimum or efficient floor or it is only partially enforced), then tort law continues to have an important regulatory role to play.
This framework can be used to explain such tort doctrines as negligence per se and suggests circumstances in which there should be a corollary doctrine of non-negligence per se. It also helps to explain recent federal preemption cases involving overlapping tort and regulatory standards. Finally, the framework produces insights for how tort law might efficiently be adjusted to coordinate with overlapping social norms, which are also considered within the L&E tradition to be a form of regulation.
Wednesday, February 24, 2010
Monday, February 22, 2010
Professor David Owen (South Carolina) and I are quoted in a report tonight on All Things Considered on National Public Radio; the audio report -- Toyota Seen Facing Multiple Lawsuits, by Wendy Kaufman -- will also be posted on the web tonight at 7:00 p.m. EST.
February 22, 2010 in Aggregate Litigation Procedures, Class Actions, Informal Aggregation, Lawyers, Procedure, Products Liability, Regulation, Resources - Federal Agencies, Travel, Vehicles | Permalink | Comments (0) | TrackBack (0)