February 28, 2007
Fast Food Not the Next Big Tobacco Litigation
Despite a few well-publicized cases, litigation over the health effects of fast food is unlikely to replicate either the number of cases or massive damages awards that have characterized tobacco litigation. There are a number of reasons for the difference. Plaintiffs in the obesity cases may have a difficult time distinguishing the effects of fast food consumption from the rest of their dietary and other health habits. Of the handful of cases brought thus far against fast food purveyors, some have been consumer fraud claims regarding food additives or nutrition claims. These cases are unlikely to result in the huge damages awards akin to those seen in the tobacco personal injuriy cases. Finallly, twenty-three states have thus far enacted at least some form of protection or immunity against obesity lawsuits. See Lianne Pinchuk's story for The National Law Journal.
February 23, 2007
Supreme Court's Punitive Damages Decision Discussed
Listen to the Lawyer 2 Lawyer discussion on the Legal Talk Network of the Supreme Court's recent decision in Philip Morris v. Williams overturning a $79.5 million punitive damages award, featuring Professor J. David Prince from William Mitchell College of Law, Michael Gerhardt of the University of North Carolina College of Law, and Mark Gottlieb, Director of the Public Health Advocacy Institute at Northeastern University School of Law.
February 20, 2007
Supreme Court Overturns Punitive Damages Award Against Philip Morris
The Supreme Court, in a 5-4 decision announced today, overturned an Oregon jury's $79.5 million punitive damages award against Philip Morris. At trial, the jury found Philip Morris had engaged in deceit, misleading the plaintiff whose death was caused by heavy smoking. It awarded compensatory damages of about $821,000 and punitive damages in the amount of $79.5 million. The Oregon Supreme Court had earlier rejected Philip Morris' argument that the Constitution prohibits the state, acting through a civil jury, from using punitive damages to punish a defendant for harm to nonparties. Justice Breyer's opinion for the majority concluded, however, that Philip Morris' due process rights were violated precisley because the state jury had not been properly instructed that it could not punish the defendant for harming nonparties.
The court's opinion also makes clear, however, that a jury is free to consider evidence of harm to nonparties in order to help determine the degree of reprehensibility of the defendant's conduct, so long as that evidence is not used as the basis for punishing the defendant directly for harm to nonparties. This distinction will presumably have to be carefully drawn in jury instructions so that there is no misunderstanding or confusion that might deprive the jury of the "proper legal guidance" required by due process.
This much-watched case was argued in October of 2006. Today's ruling comes four years after the court's last major opinion in State Farm v. Campbell regarding the constitutional due process limitations on the awarding of punitive damages. State Farm focused on the question of the ratio between compensatory and punitive damages awards as a mechanism to avoid unconstitutionally excessive punitive awards. That issue, though raised and argued in this most recent case, was not addressed by the court.
The case is Philip Morris v. Williams, 2007 WL 505781. See The Associated Press story.
February 14, 2007
Lawyer, Expert, Reporter Rebuked for Leak
Federal District Judge Jack B. Weinstein has rebuked an attorney, an expert witness, and a reporter for the New York Times for violating a protective order in a mass-tort action involving the anti-psychotic drug Zyprexa, manufactured by Eli Lilly. According to the judge, the three "conspired to obtain and publish documents in knowing violation of a court order not to do so" and described their conduct as "illegal." See Tom Perotta's story for the New York Law Journal.
February 13, 2007
Senate Bill Would Extend Consumer Product Safety Commission Authority Despite Vacancy
According to a Morning News article, on Tuesday the Senate Commerce Committee advanced legislation that would restore the authority of the Consumer Product Safety Commission that lapsed because of a panel vacancy. The measure, which was sponsored by Sen. Mark Prior, D-Ark., would allow the commissioners to conduct routine business despite a vacancy on the Commission, for an additional six months. The bill now goes to the full Senate.
February 12, 2007
Unsafe Gun Handling Precludes Recovery in Hair-Trigger Firearm Case
A Texas man whose lower leg was amputated after he had shot himself was found to be 75% at fault for his own injury and was thus precluded from recovering under Texas' modified comparative fault system against the manufacturer of a defectively-designed trigger mechanism. The plaintiff was loading a rifle in a moving vehicle. The rifle belonged to a third person who had replaced the original trigger with one manufactured by the defendant. The jury found that the replacement trigger was defectively designed because the trigger pull was too light - a hair trigger. The jury also found, however, that the plaintiff was negligent in attempting to load the rifle in a moving vehicle, by not keeping the gun pointed in a safe direction, by not treating the gun as though it were loaded, and by not having the gun on "safe" while attempting to load it.
The plaintiff argued that the cause of his injury was the defective design and that he had no duty to discover or guard againt an unsafe product design. The U.S. Court of Appeals (5th Cir.) said, however, that a consumer must act reasonably and take reasonable precautions even if the product is defective, and concluded that the jury could have found that the plaintiff's negligent gun-handling was unrelated to the product defect. Although the product defect may have been unforeseeable, said the court, an accidental discharge of a firearm is not unforeseeable. The plaintiff's injury would not have occurred in spite of the defective trigger were it not for his own negligence. See Doran v. Yoho, 2007 WL 98359 (5th Cir. (Tex.) 2007 (unreported).
February 9, 2007
An article in ConsumerAffairs.Com points out that the Consumer Product Safety Commission has been limited in many of its operations because it has an insufficient number of commissioners to vote on civil penalties and all reglatory activities, although they are able to continue product recall announcements. The July, 2006 resignation of the Commission Chairman, Hal Stratton, left a vacancy that only the President can fill. The Consumer Product Safety Act, which created and governs the CPSC, provides that the two remaining commissioners can continue their regulatory activities for six months after a vacancy occurs, but after that time they are stripped of their powers until the President fills the vacancy. That has been the case since January 15, 2007. At this point, no announcement of a replacement has been made. The appointment will have to be confirmed by the Senate. This state of limbo has previously occurred three times, twice during President Bush's administration and once during his father's. By Joseph S. Enoch.
February 8, 2007
Louisiana Appeals Court Cuts Tobacco Case Verdict
An Associated Press article in the ledger.com reports that the Louisiana 4th Circuit Court of appeal cut a jury's $591 million verdict against tobacco companies by more than half. The court also held that the plaintiffs were not entitled to recover pretrial interest in the case, which totaled about $400 million, according to David Howard, a spokesman for R.J. Reynolds Tobacco Co. Mr. Howard also said that the tobacco companies will ask the Louisiana Supreme Court to overturn the entire verdict against them. The court's ruling also reduced to $279 million the amount of money available for smoking cessation programs and limited the availability of the programs to people who smoked prior to the passage of Louisiana's products liability law in 1988, rather than to anyone who started smoking prior to the filing of the lawsuit in 1996.
February 7, 2007
FDA Reinforces Commitment to Drug Safety
In a January 30 press release the Food and Drug Administration announced a report outlining "a comprehensive commitment to the safety of drugs and other medical products." The report, also responding to recommendations made by the Institute of Medicine in a 2006 , sets out a series of preliminary steps intended to ensure the quality of the FDA's safety programs.