April 28, 2006
Governor Jeb Bush signed a bill Wednesday, April 26, 2006, repealing joint and several liability in Florida. The new is applicable to all causes of action arising on or after the date the bill becomes law. Florida law previously imposed limits on joint and several liability. The starting point was several liability, except that joint and several liability applied according to a complex set of rules depending on whether the plaintiff was at fault, the defendant’s percentage of fault, the amount of damages the plaintiff recovered, and the amount of the damages consisting of economic loss. The new law simply repeals the exceptions, providing that each party is “liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.”
April 26, 2006
Teflon - Too Slick for Claim to Stick?
A group of plaintiffs' lawyers have filed suits against DuPont, the manufacturer of Teflon, on behalf of potentially millions of consumers. The suits have been consolidated in federal district court in the Southern District of Iowa where a class certification determination is pending. The suits allege a failure to warn of claimed carcinogenic and respiratory hazards of toxic fumes containing perfluorooctanoic acid (PFOA) allegedly released from Teflon-coated cookware at high temperatures. PFOA is a building-block chemical used in the manufactuer of Teflon. The suits do not claim any personal injuries but urge that Teflon should not even be on the market because of the alleged hazard. In response, DuPont says that the claims are without merit, pointing to the U.S. Environmental Protection Agency's statement that the agency has no indication that anyone is being exposed to PFOA through the use of Teflon-coated or other nonstick cookware. See Peter Geier's story in The National Law Journal.
April 25, 2006
Lemon Law Tarts up Daimlerchrysler
In Mortle, et al. v. Daimlerchysler Corp., No. 04-CV-1291, Wis. Cir., Waukesha County, a Wisconsin jury awarded a man who claimed that his 2003 Dodge Viper contained several defects $385,979, on March 23, according to a report in Mealey Publications.
Sources told Mealey's that it is the largest award for a lemon law claim. |5-16 Mealey's Prod. Liab. & Risk 1 (2006)|
April 24, 2006
California Court of Appeals Upholds $28 Million Punitive Damages Award Against Philip Morris
In Bullock v. Philip Morris USA, Inc., 2006 Cal. App. LEXIS 562 , 2006 WL 1044161 (Cal. Ct. App. Apr. 21, 2006)[Dockets B164398 & B169083], the plaintiff, Betty Bullock, sued Philip Morris after she was diagnosed with lung cancer after 45 years of smoking, from 1956, when she was 17 years old, until 2001. The jury awarded her compensatory damages of $850,000, $100,000 of which was for pain and suffering, and $28 billion in punitive damages. The trial judge denied the defendant’s motion for a new trial on condition that the plaintiff agree to a reduction of the punitive damages award to $28 million. The California Court of Appeal, Second District, affirmed.
The court found no prejudicial error with respect to the counts for intentional misrepresentation, false promise, and fraudulent concealment. The court also held that each of those theories supported the award of punitive damages against Philip Morris. The court evaluated the punitive damages award pursuant to the constitutional guidelines established in State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003) and BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). The court concluded that the evidence weighed “in favor of high reprehensibility and in light of the vast ‘scale and profitability’ of its actions, that Philip Morris’s misconduct was extremely reprehensible.” The ratio of punitive damages to compensatory damages in the case was 33 to 1. While the ratio significantly exceeded a single digit ratio set as a guidelines by the Supreme Court, the California Court of Appeals held that it was justified, given the degree of reprehensibility of Philip Morris’s conduct.
April 23, 2006
Driver Distraction Key to Accidents
A landmark report released by the National Highway Traffic Safety Administration (NHTSA) and the Virginia Tech Transportation Institute (VTTI) on April 20 shows that driver inattention is the leading cause of most vehicle crashes and near-crashes. The report states that nearly 80 percent of crashes and 65 percent of near crashes involved some form of driver inattention in the three seconds before the accident. The primary causes of driver inattention are drowsiness and distractions, such as cellphone use. The data was based o n a 100-Car Naturalistic Driving Study, which for over a year tracked the behavior of drivers of 100 vehicles that were equipped with video and sensor devices as the vehicles were driven nearly 2 million miles. Cellphone use was the most common distrcting behavior, whether dialing a phone number of talking and listening on the phones. For background and study results see link.
Next Wave of Pharmaceutical Litigation
While most of the public attention recently has been focused on the Vioxx trials, a New York Times article on Saturday reports that there are several other drugs still on the market that will be the subject of more high-stakes litigation because of what plaintiffs' lawyers say involve either hidden and severe side effectst or improper marketing of the drugs. The drugs include AstraZeneca's Seroquel, which is an antipsychotic medicine, Johnson & Johnson's Ortho-Evra, a birth control patch, Wheth's Prempro, a hormone therapy for women; and Merck's Fosamax, an osteoperosis medicine. The combined annual sales of the drugs total almost $7 billion. They are used by millions of patients, creating a significant pool for litigation. By Alex Berenson.
April 21, 2006
Another Merck Verdict
On Friday, in the sixth case to be tried to a jury against Merck in a Vioxx case, a Texas jury found Merck liable for the wrongful death of a 71-year-old man who suffered a fatal heart attack within a month after taking Vioxx. The jury awarded damages of $32 million, including $7 million in compensatory and $25 million on punitive damages. Merck intends to appeal the verdict in the case. By Lynn Brezosky, AP Findlaw
April 19, 2006
Mitsubishi Ordered to Pay $47,000 in Damages in Japanese Death Case
According to a Houston Chronicle article, on Tuesday a Yokohama district court ordered Mistubishi Motors to pay $47,000 in damages to the mother of a woman who was crushed while walking on a sidewalk by a wheel that detached from a Mitsubishi truck. The wheel detached from a truck that was one of the models that Mitsubishi later recalled in a scandal that surfaced in 2000 when the company acknowledged that it has been systematically concealing defects for decades. The claimant, Yoko Masuda, the mother, sued for $1.4 million in damages. Her attorney, Katsuji Aoki, said he would appeal the court's ruling. He said the award was too small and he faulted the Japanese legal system for failing to permit punitive damages, which are not permitted in products liability cases under Japanese law. Japan has a products liability law, passed in 1994, but suits under the law are relatively rare. By Yuri Kageyama, AP Business Writer. For a good recent article discussing Japanese litigation, see Tom Ginsburg and Glenn Hoetker, The Unreluctant Litigant? An Empirical Analysis of Japan's Turn to Litigation, 35 J. Legal Stud. 31 (2006).
April 16, 2006
Mississippi Supreme Court Dismisses Suits Against 3M Company for Forum Non Conveniens
In 3M Co. v. Johnson, West decided April 13, 2006, the Mississippi Supreme Court decided a second case involving claims against 3M. 3M is one of a number of defendants in an action that initially involved a single complaint by 185 defendants against 70 defendants. The suit sought damages for injuries caused by exposure to asbestos. 3M did not make products containing asbestos but was sued because the plaintiffs allege that the company's respirators failed to protect them against asbestos exposure. Only 36 of those plaintiffs in the initial mass-tort action had claims against 3M, and only 17 of those plaintiffs had a clear connection with Mississippi. In the first case, Johnson I, 891 So.2d 151 (Miss. 2005), a trial group of ten was chosen. Three of the plaintiffs settled before or during trial and one was dismissed. Of the remaining six, only four had a claim against 3M and two against the other defendants. The jury in the case awarded damages of $25 million to each plaintiff. The supreme court reversed and entered judgment for 3M. The court also ruled that the plaintiffs in this trial group should be severed. In the current case, 3M argued that the 19 out-of-state plaintiffs should be dismissed based on the doctrine of forum non conveniens. The supreme court overturned the Hughes County Circuit Court and held that the claims should be dismissed. The supreme court held that 18 of the plaintiffs had no connection to Mississippi and remanded for a finding as to whether the remaining plaintiff should be dismissed. The 18 plaintiffs were not from Mississippi and their claims did not arise in Mississippi. The court emphasized that “[t]he courts of Mississippi will not become the default forum for plaintiffs seeking to consolidate mass-tort actions,” and that “[t]o allow otherwise would waste finite judicial resources on claims that have nothing to do with the state.”
April 10, 2006
Admissibility of Scientific Studies Developed for Use in Litigation
An interesting debate between Michael Martinez, a partner in the Washington, D.C. firm of Crowell & Moring, and Jay Kesan, Professor & Director of the Program in Intellectual Property and Technology Law at the University of Illinois over the admissibilty post-Daubert of scientific studies developed for possible use in litigation is available on-line at http://legalaffairs.org/webexclusive/debateclub_daubert0406.msp
The debaters seem to agree that such studies should not necessarily be inadmissible so long as they can satisfy the Daubert criteria but that the process created by Daubert can be improved by, for example, requiring the disclosure of any direct or indirect involvment by any party in any study that is being relied upon in litigation.
Both Mr. Martinez and Professor Kesan refer to the thoughtful and very helpful article by Professor Bill Childs at Western New England College of Law on certain aspects of litigation-funded science.
April 8, 2006
A New York Times article reports that a top Food and Drug Administration official said the FDA intends to strengthen its monitoring method for heart devices such as defibrillators by appointing outside medical experts to assist in reviewing the safety of units that are already on the market. The FDA has traditionally used advisory panels to determine whether to permit the sale of a new device, but not for post-sale reviews. By Barry Meier.
April 7, 2006
Consumer Product Safety Commission Product Safety Reporting Awareness
In an article in In-House Counsel, Ken Ross highlights the actions of the compliance staff of the Consumer Product Safety Commission (CPSC) in seeking significant civil penalties against companies for failure to report or late reporting. The reporting requirements of the Consumer Product Safety Act obligate manufacturers, importers, distributors, and retailers to immediately notify the Commission upon obtaining information reasonably supporting the conclusion that a product distributed in commerce presents certain specified dangers or hazards or fails to comply with certain CPSA standards. The most significant basis for reporting is section 15(b)(2) of the Act, which requires requires reporting of a defect that could create a substantial product hazard. Mr. Ross reviewed all the penalty matters for the past five years and found several common threads in the cases. The manufacturer may have made a design change because of a safety issue without reporting it to the Commission or notifying prior users of the change; the manufcturer may have issued a dealer alert without reporting it to the Commission or alerting its customers; the manufacturer failed to supply complete information to the Commission when investigating a safety issue; or the Commission had to request information from the manufacturer. The author concludes that in light of the fact that some 40% of reports do not result in action by the Commission, manufacturers and others in the chain of distribution should err on the side of early reporting and avoid the potential for a late-reporting fine.
April 6, 2006
Global Developments in Products Liability Law
The increasing globalization of the world's economies is having a similar influence on law and legal systems. In the area of products liability law, American law is influencing developments elsewhere in the world just as products liability law abroad has become an important consideration for American lawyers, particularly those who represent businesses that market their products internationally.
In Australia, a system of litigation funding is developing that effectively circumvents the traditional prohibition on contingent fees by allowing private litigation funding firms such as accounting firms to finance a party's case in return for a portion of any damages recovered. This process is also attracting some interest in the United Kingdom. Like the U.S., Australia has an active litigation culture. Australian courts seem increasingly to recognize the value of externally funded litigation as a means of access to civil justice. A recent case is Fostif Pty Ltd. v. Campbells Cash & Carry Pty Ltd., in which the New South Wales Court of Appeal noted: "The considerations of public policy which once found maintenance and champerty to be so repugnant have changed over the course of time. The social utility of assisted litigation is now recognized . . . as a means of increasing access to justice." Similarly, the Federal Court of Australia noted in Gore v. Justice Corp Pty Ltd., that "[i]f . . . a business house, openly and reasonably wishes to engage in the business of funding litigation and is prepared to meet the costs of the opposing party should that party be successful, we see no cause for instant alarm." Some Australian judges, however, remain concerned about the potential for abuse in such a system as reflected in the decisions of the Western Australian Supreme Court and Court of Appeal in Claires Keeley No's 1 & 2 which recognize the importance of access to justice but found that the conduct of the litigation funder, in these cases at least, amounted to "trafficking in litigation" and therefore constituted an abuse of process. The issue has attracted the attention of the Australian High Court which has taken the appeal in Fostif.
Another development of great interest on the international front is the proposed revision of the Chinese civil code's statement of the basic principles of tort liability including those relating to products liability. A recently-published article by George Conk (abstract with link to downloadable full article) details these proposals.
April 5, 2006
Vioxx - Round 4 - A Split Verdict
Less than two days after beginning its deliberations, a New Jersey jury returned verdicts in two Vioixx cases tried together. As to each plaintiff's claim, the jury determined that Merck had failed to warn of heart attack risks associated with use of its popular prescription drug Vioxx. John McDarby, 77, who took the drug for four years, was awarded $4.5 million in damages. However, in the companion case, the jury decided that Vioxx was not the cause of the Thomas Cona's heart attack. Cona claimed to have taken the drug for 22 months. Both plaintiffs took the drug for arthritis pain. Merck took the position that the plaintiffs were at risk for heart attacks because of clogged arteries before taking Vioxx. The trial was the first involving long-term use of the drug. See the story by John Curran for the Associated Press.
April 4, 2006
N.J. Appeals Court Allows Vioxx Class Action Against Merck to Proceed
The latest battle in the Vioxx wars was won by the plaintiffs when, on March 31st, an Appellate Division panel of the New Jersey Superior Court upheld a trial judge's nationwide class certification. In International Union of Operating Engineers, Local #68 Welfare Fund v. Merck & Co., the plaintiff sued Merck claiming that the company misrepresented the safety of its drug Vioxx thereby violating New Jersey's Consumer Fraud Act. Had Merck not done so, claimed the plaintiff, it and other third party payors would not have covered the cost of Vioxx. Superior Court Judge Carol Higbee certified a nationwide class of plaintiffs thereby allowing the plaintiff to sue Merck in New Jersey on behalf of itself and all third-party payors in all 50 states and the District of Columbia who have paid anyone for the purchase of Vioxx. The appellate court affirmed Judge Higbee's ruling saying that, "though undoubtedly presenting complex management problems," common issues among all members of this class predominate and resolution of the entire consumer fraud dispute is subject to New Jersey's Consumer Fraud Act. Merck will appeal the ruling, which subjects the company to the possibility of treble damages, to the New Jersey Supreme Court. See the AP story by Theresa Agovino.
April 3, 2006
Illinois Supreme Court Denies Appeal in $1 Million Welding Rod Case
On March 29, 2006, the Illinois Supreme Court denied the defendant's appeal in Elam v. Lincoln Electric Co. Lawrence Elam brought a products liability suit against Lincoln Electric Company, Hobart Brothers Company, and Airco/The BOC Group, Inc., manufacturers of welding rods. He claimed that the fumes from the rods, which contained manganese, were the cause of his Parkinson's disease and that the defendants were liable for failure to warn him of the risks associated with the rods. After a four-week circuit court trial, a jury returned a $1 million general verdict in Elam's favor. The trial court entered judgment against the defendants for $925,000, reflecting a setoff for a prior settlement. The Illinois Court of Appeals affirmed in Elam v. Lincoln Elec. Co., 841 N.E.2d 1037 (Ill. Ct. App. 2005) |Lexis| and the Illinois Supreme Court denied the appeal. There are thousands of products liability cases that have been filed by welders against Lincoln Electric Company, General Electric, Westinghouse, Caterpillar Inc., and a number of other manufacturers of welding consumables (In re Welding Fume Products Liability Litigation, MDL Docket No. 1535, United States District Court for the Northern District of Ohio). The claims Mr. Elam asserted are similar to the claims being asserted in the other cases. Yahoo Finance