August 31, 2006
$50 Million Compensatory Award in Vioxx Case Gets Tossed
A federal judge has ruled that the $50 million compensatory damages award in a Vioxx case was "grossly excessive" and has ordered a new trial on the damages issue. A $1 million punitive damages award was also overturned. The judge said that no reasonable jury could have found the effects on the plaintiff, who had suffered a heart attack after 2-1/2 years' use of the drug, to entitle him to $50 million in compensatory damages. The judge observed that past and future medical costs, pain and suffering and other intangible losses are all legitmate reasons for compensatory damages. However, since the plaintiff was retired, lost wages and earning capacity were not legitimate considerations in the damages award. See Janet McConnaughey's story for the Associated Press.
August 30, 2006
Cigarettes Now More Addictive
Even as public health efforts to curb smoking have increased, the nicotine content of cigarettes has also increased, making smoking more addictive and quitting more difficult. A Massachusetts Department of Public Health study, using data generated by cigarette makers, found that the nicotine in cigarettes that can be inhaled increased by an average of 10% over the period 1998-2004. Despite the soaring costs of cigarettes, public smoking bans, and other measures aimed at discouraging smoking, the smoking rate among U.S. adults persists at about 20%. Anti-smoking advocates claim that the increased nicotine levels are aimed at getting smokers addicted more quickly and keeping them addicted. See Steven Smith's story for the Boston Globe.
August 19, 2006
3M Not Liable for Misuse of Dust Mask
The widow of James Triplett, a pipefitter who died of lung cancer, sued 3M claiming that her husband's cancer was caused by exposure to asbestos and that the company's dust mask did not adequately protect him against exposure to asbestos dust. In its motion for summary judgment, 3M argued that its mask was not marketed for protection against toxic dust and was not defective. The mask label warned that a MESA/NIOSH approved mask should be used to protect against toxic dust and vapors.
In Triplett v. Minnesota Mining and Mfg. Co., 422 F. Supp. 2d 779 (W.D. Ky. 2006), the U.S. District Court for the Western District of Kentucky ruled for 3M saying: "We reject the notion that the 8500 mask was defective because it did not provide protection against exposures beyond those for which the product was designed." The court also ruled that the company had no duty to warn against using the mask while removing asbestos because Triplett's employer was a "sophisticated intermediary" who had been adequately warned by the product manufacturer and who had the duty of ensuring proper respiratory protection for its employees.
August 18, 2006
Federal Judge Rules Tobacco Firms Deceived Smokers and Violated Racketeering Laws
A federal judge has ruled that the nation's top cigarette manufacturers violated racketeering laws and deceived consumers for years about the health hazards of smoking but said she couldn't order them to pay the $10 billion sought by the Justice Department for smoking cessation programs. The judge said that a smoking cessation program "would unquestionably serve the public interest" but that she was barred by an appeals court ruling that remedies in this litigation must be forward-looking and not penalties for past actions. The defendants were ordered, however, to publish in newspapers and on their websites "corrective statements" on the adverse health effects and addictive properties of smoking and nicotine. The companies were also ordered to stop labelling cigarettes as "low tar," "light," "ultra light," or "mild" because such cigarettes have been found to be no safer than any others. The defendants were also ordered to pay the Justice Department's costs for pursuing the litigation estimated to be over $140 million.
Ligget Group, Inc. was excluded from the court's ruling. See The Associated Press story.
$3 Million in Damages Too Much for a Few Minutes Suffering in Fatal Fire
A federal judge reduced a jury's $3 million pain and suffering award, finding that it was not warranted by the few minutes conscious suffering experienced by the plaintiffs who died in a fire. The wrongful death claim was brought against a smoke alarm manufacturer whose product functioned properly and was approved by Underwriters Laboratory but who did not warn purchasers that a better product was available. The plaintiffs' proof suggested that one victim suffered for about three minutes and the other endured about six minutes of pain and suffering before succumbing to the fire. Comparing the jury's award to pain and suffering awards in several other New York cases, the judge concluded that it deviated "materially from what would be reasonable compensation," leading the plaintiffs to agree to a remittitur. See John Caher's story for the New York Law Journal.
August 17, 2006
Merck Takes One-Two Vioxx Punch
Merck & Co. was today stung by two major setbacks in the litigation against the company over Vioxx, its painkiller now withdrawn from the market. A New Orleans jury found that Merck failed to adequately warn of risks associated with the drug and awarded $51 million to a man who suffered a heart attack after taking Vioxx for two years. In the other important development, a New Jersey judge ruled that evidence uncovered since a November verdict in favor of the company warrants a new trial for the plaintiff in that case who blamed Vioxx for a heart attack that he suffered in 2001. Together, these developments seem to indicate a greater liability potential for Merck and therefore greater pressure on the company to begin settling at least some of the approximately 14,000 Vioxx cases already filed. Merck, however, says that it will continue to try every case. One investment analysist estimates that Merck will spend about $1 billion per year for the next ten years on this litigation but also reckons that Merck can easily absorb that cost. See Mary Foster's story for the Associated Press.
August 8, 2006
Infant Death Results from Ingestion of Hair Product - No Failure to Warn
The manufacturer of a hair and body moisturizer spray labeled "all natural" was not liable for failure to warn against ingestion of the product in a case in which the product was left within reach of an 11-month old child who did ingest it and subsequently died. The Michigan Supreme Court found that a reasonable person should know of this risk and that the product manufacturer therefore had no duty to warn about it. The bottle containing the product included an ingredients list and a warning not to use it near sparks or flame but there was no warning not to ingest the product or to keep it out of reach of children. The court's majority concluded that the law does not require every possible injury that could result from misuse of a product to be warned against. See Jack Kresnack's story for the Detroit Free Press.
The result is in stark contrast to the Washington Court of Appeals' 1990 decision in Ayers v. Johnson Baby Products, involving a 15-month old toddler who aspirated baby oil and suffered irreversible brain damage. In Ayers, the child's teen-aged sister had transferred some of the oil into a small bottle which she kept in her purse. The sister inadvertently left her purse where the toddler found it, opened the bottle and drank some of its contents. The court reasoned that this risk was not obvious and, in the absence of a warning of the risks of aspiration, the product was defective. The Supreme Court of Washington unanimously affirmed the decision of the court of appeals in an opinion closely tracking that of the intermediate court.
August 7, 2006
$5 Million Verdict Rendered Against Manufacturer of Infant Tylenol
A Philadelphia jury has returned a $5 million verdict against McNeil-PPC, the manufacturers of Tylenol products, for failure to warn of the risks of overdose when using Infant Tylenol. The plaintiffs were the family of a one-year-old child who died of liver damage. The family claimed that the death resulted from an accidental overdose of the over-the-counter drug caused by the manufacturer's failure to warn of the risks of such an overdose. Infant Tylenol is more potent than Children's Tylenol to make it easier to administer to infants. The label advised that a doctor should be consulted about the proper dosage for a child meeting the age and weight description of the plaintiffs' son. The plaintiff's argued that they did not know that the drug was made in a concentrated form and that the risk warnings in the drug's labelling were inadequate. See Gina Passarella's story in The Legal Intelligencer.
August 6, 2006
Merck Prevails in First California Vioxx Trial
A Los Angeles jury cleared drug manufacturer Merck & Co. of liability in a case brought by a 71-year-old man who claimed his heart ailments were caused by the defendant's painkiller, Vioxx. The jury determined that Merck was not negligent, adequately warned of the drug's potential cardiac risks, and that the drug did not cause the plaintiff's health problems. Merck has now won five Vioxx cases that have gone to trial and lost three, a record that no doubt fortifies the company's oft-stated position that it will defend these cases one at a time. See Alex Veiga's story for the Associated Press. Another Vioxx trial is now underway in federal court in New Orleans. Stay tuned!
August 1, 2006
Wyeth Faces First Prempro Suit
After finally settling - for $21 billion thus far - the bulk of the lawsuits brought against it for the diet drug fen-phen, Wyeth now faces approximately 4500 suits filed against the company over its hormone-replacement therapy (HRT), Prempro. Prempro is an estrogen-progestin combination designed to relieve menopausal symptoms such as hot flashes. The first of these cases goes to trial in federal court in Little Rock, Arkansas on August 21st. The plaintiff is 67-year-old Linda Reeves who claims that her breast cancer was caused by her taking Prempro for approximately eight years. The Women's Health Initiative study, halted in 2002, showed a slight increase in cancer, heart attack and stroke risks for HRT patients but proving causation in individual cases may prove to be difficult. See Theresa Agovino's story for the Associated Press.