December 18, 2006
Drug Maker Merck Prevails in Two More Vioxx Trials
Last week, juries returned verdicts in favor of Merck & Co., the manufacturer of Vioxx, in two cases involving claims that the drug caused the plaintiff's heart attacks. In the first case, tried in federal court in New Orleans, a Tennessee man blamed his 2003 heart attack on the arthritis pain drug. He claimed that Vioxx created a heart attack risk and that Merck had failed to adequately warn doctors about that risk. However, he had other coronary risk factors including tobacco use, high blood pressure, high cholesterol, and cocaine use. He failed to convince the jury that Vioxx was the cause of his heart attack. See Mary Foster's story for The Associated Press. In the other case, after deliberating only 90 minutes, an Alabama jury rejected the claim of a man who blamed his 2001 heart attack on Vioxx. See Jay Reeves' story for The Associated Press.
December 15, 2006
Atkins Diet Not a Defective Product
A Florida businessman who sued Atkins Nutritionals claiming that the Atkins diet "nearly killed me," had his suit thrown out by U.S. District Judge Denny Chin who ruled that the company's books and food products are not defective under the principles of products liability law and the Atkins diet merely consisted of advice and ideas. The judge also noted that he has had success with his own much simpler diet of running more and eating less. See Leon Fooksman's story in the South Florida Sun-Sentinel.
December 14, 2006
Eighth Circuit Rules Fire Case Can Proceed to Trial on Res Ipsa-Type Theory
The U.S. Court of Appeals for the 8th Circuit yesterday reversed a summary judgment for the defendants in a suit against the manufacturer and seller of a motorized wheelchair. The district court's ruling was based on the conclusion that plaintiff's expert was not qualified to testify as to the specific defect in the product because he was not an expert in the engineering or manufacturing of motorized chairs. The Court of Appeals ruled, however, that the expert was a certified fire investigator who could testify as to the likely point of origin of the fire in plaintiff's house and who, based on his investigation which had eliminated other possible sources of fire, could draw an inference as to the cause of the fire. Under the applicable Missouri law, this and other circumstantial evidence offered by the plaintiff was enough so that a jury could infer a defect in the product. Hickerson v. Pride Mobility Products Corp., 2006 WL 3614324.
December 13, 2006
American Tort Reform Association Names its Judicial Hellholes
The American Tort Reform Associationtoday released its annual Judicial Hellholes® report, which is intended to highlight the worst jurisdictions in America in which to face a lawsuit. The report named West Virginia, South Florida, Southeast Texas, and three counties in Illinois as "Judicial Hellholes." The report's Watchlist includes Miller County, Arkansas; Los Angeles County, California; San Francisco, California;Philadelphia, Pennsylvania; Orleans Parish, Louisiana; and Delaware According to the ATRA president, Sherman Joyce, the hellholes "are places where judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants, in civil lawsuits." He said that the top six hellholes are in states that have adopted significant tort reforms, but where "a handful of judges are either ignoring those reforms or otherwise abusing their discretion to distort cases in favor of plaintiffs."
December 12, 2006
"Who Killed the Mass Torts Bonanza?"
In a lengthy article in The American Lawyer, "Who Killed the Mass Torts Bonanza?" Alison Frankel says that "[t]he power of the plaintiffs bar is on the wane in this country, and will be for a long time to come." She notes the converging forces that been effective in limiting mass tort claims, including state tort reform efforts, legislatively and in changing the composition of state supreme courts, the management of mass tort litigation through multidistrict litigation, and new defense approaches to mass tort litigation. She concludes by noting that "[p]laintiffs lawyers launched the mass tort era by exposing the grave wrongs that defendants inflicted on ordinary people" and that "[t]o revive it, they'll have to show those people that it's still the defendants--and not they--who are at fault."
December 11, 2006
Have Wii Been Warned Adequately?
Nintendo's new Wii video game controller, which responds to users' body movements, has apparently given rise to a level of excitement and risk not entirely anticipated by the company. The controller is designed to allow users to emulate the motions of games they are playing, such as a golfer's swing. Some people are apparently getting more excited when using the controller than Nintendo anticipated. The result is broken wrist safety straps and unteathered game controllers flying around the house, into lamps, through windows, and otherwise wreaking minor havoc. See Tom Zeller, Jr.'s story in the New York Times.
December 5, 2006
Europe Shows Growing Interest in Class Actions
The European legal landscape has shifted in the last few years so that forms of class litigation are increasingly available to consumers. England, Sweden, Spain, Germany, and the Netherlands all allow for some form of class litigation. France, Ireland, Italy, Finland, Denmark and Norway are all considering legislation that would facilitate certain kinds of class actions. In general, however, European legal systems prohibit contingency-fee relationships and punitive damages, limit discovery in significant ways, and require the losing side to pay the prevailing party's fees and costs. Also, judges rather than juries decide cases and apportion damages. All of these factors make class litigation far more problematic than in the U.S. legal system.
European businesses should be more concerned, according to some defense lawyers, about the efforts of plaintiffs' lawyers to find ways to sue foreign companies in U.S. courts, thus subjecting them to the more free-wheeling world of American law and legal procedures. See Peter Geier's story for The National Law Journal.
December 4, 2006
What's Good for Pharma Is Good for America?
Tightening the regulatory screws on the pharmacuetical industry is high on the agenda of the new Democrat-controlled Congress, according to an article by Professor Richard Epstein in the Boston Globe. But the industry is more fragile than it appears, according to Epstein, and there is much to fear in any new round of regulation. The drug firms' huge profits are often tied to one or two drugs and those profits evaporate when their patents expire and generics enter the marketplace. The FDA's increased willingness to remove drugs from the marketplace at the first sign of real or imagined dangerous side effects, and the threat of price controls, are additional constraints on research and investment in new drugs. Future medical advances may be curtailed, according to Epstien, if these pressures make investment capital harder for drug firms to find.
December 1, 2006
U.S. and Japan Sign Consumer Product Safety Agreement
The U.S. Consumer Product Safety Commission has signed a cooperative agreement with Japan to improve the safety of consumer products in both countries. The CPSC already has similar agreements with other countries including China and Mexico.