December 21, 2005
Wisconsin Legislature Considers Several Changes in Products Liability Law
The Wisconsin legislature has submitted a bill for the governor's signature that would limit the affect of the Wisconsin Supreme Court's ruling last summer in Thomas v. Mallett, 701 N.W.2d 523 (WIsc. 2005). |Lexis||Wisconsin Supreme Court| In that case, the court allowed a child to recover for injuries resulting from the ingestion of lead-based paint although the child could not prove that a particular manufacturer had produced the white lead carbonate that he had ingested. The court adopted a risk-contribution theory, saying that all of the manufacturers of the lead component created risk of such injuries and all should contribute to paying the plaintiff's damages. Assembly Bill 778 provides that a product manufacturer or seller may be held liable only if (1) the plaintiff proves, in addition to causation, damages, and other elements of the claim, that the specific product that caused the plaintiff's injury was manufactured or sold by the defendant, or (2) if the plaintiff cannot prove specific causation, that the defendants named in the action collectively, during the relevant production period, manufactured or sold within the state at least 80 percent of all chemically-identical products. The bill would also limit liability to products that were manufactured or sold not more than 25 years before the date of the injury alleged and only if the product was manufactured for more than five years.
On December 2nd, Wisconsin Governor Jim Doyle vetoed a bill that would have re-created a cap on non-economic damages in medical malpractice cases. The bill was a response to the Wisconsin Supreme Court's decision in Ferdon v. WIsconsin Patients Compensation Fund, 701 N.W.2d 440 (WIsc. 2005) |Lexis||Wisconsin Supreme Court| declaring unconstitutional the state's noneconomic damages cap as an equal protection violation. Assembly Bill 766 would have limited noneconomic damages for each occurence of medical malpractice to $550,000 for persons under the age of 18, and $450,000 for persons age 18 and over. The Ferdon court's essential reasoning was that the cap at issue in that case violated equal protection because it affected individual claimants differently, allowing some full recovery of noneconomic losses and sevely limiting the recoveries of others with noneconomic losses substantially greater than the cap. It is hard to see how the vetoed proposal would have cured the equal protection problem.
Another bill introduced this year is Assembly Bill 101 which would establish several criteria to determine whether a product manufacturer is strictly liable for product defect. Among this comprehensive bill's provisions is one that would adopt the Restatement 3d's risk-benefit (negligence) test for design and warning defect cases, implicitly doing away with the consumer expectation test in such cases. Other provisions provide a liability shield for non-manufacturing defendants; limit the use of remedial measures evidence; limit a manufacturer's liabilty for damages caused by products more than 15 years old unless the manufacturer specified that the product would last longer; change some joint and several liability rules for products liability cases; and raise a rebuttable presumption that the intoxication of a person with a blood alcohol level of 0.08 or higher, and not the product defect, is the cause of such person's injury.
Assembly Bills 203 and 278 both contain requirements for the admissibility of expert testimony and preclude the testimony of any expert who is entitled to receive any compensation contingent on the outcome of the case.
December 20, 2005
More Improper Joinder in Mississippi
The Mississippi Supreme Court has again reversed a trial court's denial of a defendant's motion to sever plaintiffs' claims in two so-called "mass tort" cases. In 3M Company, et al. v. Letha Glass, et al., #2003-IA-00617-SCT and 3M Company, et al. v. Charles H. Green, et al., #2003-IA-00476-SCT, decided on December 15, 2005, the 15 plaintiffs claimed silica-related injuries caused by one or more of 76 defendants but without identifying which defendant(s) were allegedly responsible for which plaintiff's harm. Applying the rules earlier set forth in Janssen Pharmacertica v. Armond, 866 So. 2d 1092 (Miss. 2004) and Harold's Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493 (Miss. 2004), the court said that "[w]e think it reasonable to expect counsel to know prior to filing suit the identity of each client, the defendant each client proposes to sue, the alleged harm committed by specific defendants against each client, the location and period of time the harm was committed." Without this "necessary information" in the plaintiffs' pleadings, a defendant cannot evalutate and challenge, if appropriate, joinder of two or more plaintiffs. The court also pointed out that these fundamental pleading failures leave the trial court without sufficient information to determine whether joinder is appropriate. The supreme court noted that its decision in Armond had removed Mississippi from its "dubious distinction as extremely liberal on Rule 20 joinder" and brought the state's law more into line with other states' and the federal courts' joinder rules. The court's remand order allows plaintiffs' counsel 60 days to provide the required information and directs the trial court to dismiss the claims of all plaintiffs failing to comply or whose cases are not properly venued in Mississippi and to transfer to a court of proper venue the claims of each plaintiff who complies.
December 13, 2005
No Vioxx Verdict
Wall Street was apparently anticipating a defense verdict in Evelyn Irvin Plunkett, et al. v. Merck & Co. The first federal Vioxx trail ended Monday in a hung jury and Merck's stock prices fell almost three percent on the news. A Reuters news report claims that a lone member of the nine-person jury believed Merck was at fault but that the remaining eight agreed with the company that it was not responsible for this death.
This was the third Vioxx case to go to trial. In August 2005, a state court jury in south Texas returned a $253.5 million verdict for the plaintiffs, reduced to $26.1 million under Texas' punitive damages cap. Merck is expected to appeal that verdict. In November 2005, a state court jury in New Jersey returned a defense verdict.
Vioxx is the prescription pain medication withdrawn from the market by Merck in September 2004 when its own study indicated that the drug could double the risk of heart attack or stroke if taken for 18 months or longer.
Causation appears to be the big issue in these cases, brought on design defect, failure to warn and several other theories of liability. The plaintiff's lawyers claim that even short-term use of the drug is dangerous and that Vioxx caused the death of Dicky Irvin who took the drug for less than a month before suffering a fatal heart attack. Merck's own study shows that longer-term use of Vioxx creates serious cardiovascular side effects so the critical question is whether plaintiffs can overcome the defense contention that the drug does not result in heart problems in people who have taken it for fewer than 18 months.
U.S. District Judge Eldon Fallon, the federal MDL judge Vioxx litigation, says the case will be retried. Merck estimates that it faces about 7000 VIoxx lawsuits, about 2900 of them in the federal MDL, so the first few federal trials will presumably set a pattern for that subset of cases.