March 29, 2007
Learned Intermediary Doctrine Provides Basis for Summary Judgment in Two Cases
In Cowley v. Abbott Laboratories, 2007 WL 663656 (W.D. Wisc.), the plaintiff claimed that his neurological disorder was caused by taking the prescription drug Humira, manufactured by Abbott, and that Abbott had failed to warn adequately about certain neurological side-effects such as those suffered by the plaintiff. The defendant moved for summary judgment, arguing that under North Carolina's learned intermediary doctrine (found in a N. C. statute), it had no duty to warn the plaintiff directly and that it had discharged its duty to warn by adequately warning plaintiff's prescribing physician (the learned intermediary) of these possible side-effects. Plaintiff did not dispute the adequacy of the warnings given to the plaintiff's physician and the court accordingly granted summary judgment for the defendant.
An interesting twist to this case, filed in state court in Wisconsin and removed to the federal district court there by the defendant, is the application of North Carolina law. The federal district court, applying Wisconsin choice-of-law rules determined that North Carolina law should apply since the plaintiff was living in North Carolina at the time he had been diagnosed and had taken the drugs which were prescribed by a North Carolina physician.
In Madsen v. American Home Products, 2007 WL 738627 (E. D. Mo.), the plaintiff had developed a heart valve disorder allegedly caused by her use of the "fenphen" diet drugs. She claimed that the drugs' manufacturer had failed to warn of the risk of valvular heart disease. The defendant moved for summary judgment, arguing that the learned intermediary doctrine applied and that health care providers were adequately warned of the diet drugs' potential adverse side effects. The federal district court in Missouri determined that Iowa law applied and that Iowa would apply the learned intermediary doctrine in these circumstances. The court concluded that plaintiff had presented sufficient evidence to show that defendant had failed to adequately warn the medical community of this risk at the time the drugs were prescribed for and used by the plaintiff. However, the court also determined that the plaintiff's physician would have prescribed these drugs even if the defendant had provided timely adeqaute warnings, that plaintiff had provided no evidence to the contrary, and that therefore the alleged failure to warn was not the proximate cause of the plaintiff's injury.
March 20, 2007
Expert's Untested Opinon Excluded in Unintended Acceleration Case
In Federico v. Ford Motor Co., 854 N.E.2d 448 (Mass. App. Ct. 2006), plaintiff, as administratrix of her husband's estate, claimed that his death was caused when a Mercury Sable, manufactured by Ford Motor Co., accelerated to high speed and struck the decedent. In support of the design defect claim, the plaintiff proffered the testimony of Samuel J. Sero, an electronics expert, who was prepared to testify that the vehicle's cruise control was subject to "transient electronic signals or electromagnetic interference" that would cause the vehicle to accelerate unbidden by the driver. The Appeals Court of Massachesetts upheld the trial judge's exclusion of Sero's opinion as scientifically unreliable under Commonwealth v. Lanigan, Massachusett's version of the Daubert rule. The trial judge had concluded that Sero's theories (1) had not been accepted by the relevant scientific community and that indeed other studies had rejected Sero's conclusions, (2) had not been successfully tested and that the expert himself admitted that it would be difficult, if not impossible, to do so, and (3) had not been published or subjected to peer review. The trial court also referred to the rejection in an earlier case in federal district court in New York of similar testimony by Sero.
Consumer Product Safety Commission Spring Safety Drive
The Consumer Product Safety Commission has launched a "Drive to 1 Million" initiative, which is intended to stress the importance to consumers of checking for recalled products when they do their spring cleaning. The goal of the project is to sign up at lease one million consumers who will receive product recall information through the CPSC's e-mail notification project. Consumers can sign up for the free service at www.cpsc.gov.
March 14, 2007
EU Consumer Affairs Commissioner Considers Class-Action Style Suits
The new EU Commissioner of Consumer Affairs recently announced to the European Parliament in Strasbourg that she is considering proposals to introduce into the EU new rules for collective redress by consumers which could include class-action type lawsuits. The proposal under consideration would allow claims of consumers from multiple jurisdictions to be aggregated, raising several interesting questions including questions of jurisdiction and the way in which such a procedure would be reconciled with existing EU and national rules about where such claims may be brought. Such an unprecedented system of international cooperation in the field of consumer protection would certainly increase the litigation exposure of companies providing goods and services in the EU.
March 12, 2007
DaimlerChrysler Hit With $50M Punitive Verdict
A Los Angeles jury returned a $50 million punitive damages verdict against DaimlerChrysler following an earlier $5.2 million compensatory verdict in a case in which the plaintiff suffered fatal head injuries when, after he had exited his Dodge pickup truck, it went into reverse unexpectedly and ran over him. The big verdict may be something of a surprise in light of the Supreme Court's recent ruling in Philip Morris v. Williams imposing additional limitations on a jury's ability to award punitive damages. DaimlerChrysler is considering an appeal. See Matthew Hirsch's story for The Recorder.
Washington Expands Duty to Warn in Asbestos Cases
The Washington Court of Appeals has dramatically expanded the duty to warn in a pair of recently-decided asbestos cases. In one case, Simonetta v. Viad Corp., 151 P.3d 1019 (Wash. App. Div. 2007), the court ruled that a product manufacturer whose products necessarily involved the use of asbestos, even if the asbestos was not part of the product and was instead supplied by another manufacturer, owes a duty to warn of the risks of asbestos exposure. In the other case, Bratten v. Saberhagen Holdings, 151 P.3d 1010 (Wash. App. Div. 2007), the court ruled that products that required the use of asbestos to function properly, even though the products themselves contained no asbestos, may be considered defective. Taken together, these cases purport to expand the duty of product manufacturers to warn about the potential risks of asbestos products made and installed by others. See the analysis by G.W. Shaw, Michael K. Ryan and James H. Curtis of Kirkpatrick & Lockhart Preston Gates Ellis LLP.
March 9, 2007
Vioxx Verdict Stands Despite Plaintiff's Widow's Loan to Juror
A $7.75 million jury award to the estate of a man whose death was blamed on only 17 days of Vioxx use will stand after the trial judge let stand the defendant's request for a new trial. Merck, the defendant, made the request after learning that shortly before the trial, one of the jurors received a $10,000 cash loan from the plaintiff's widow. Merck will appeal the denial of the retrial motion. See The Associated Press story.
March 5, 2007
Mixed Results for Merck in Vioxx Case
A New Jersey jury found that Merck was negligent and failed to adequately warn prescribing physicians in the case of one former Vioxx user who alleged that she suffered a heart attack as a result of using the prescription painkiller. The causation and damages phase of the trial begins today for this plaintiff. However, the jury ruled against the second plaintiff in the same trial, deciding that Merck was not negligent in marketing the drug but had violated the state's consumer fraud statute. This means that this second plaintiff can, at best, recoup three times the cost of the Vioxx prescriptions. Merck had strengthened its Vioxx warnings between the time the first plaintff used the drug and the second plaintiff's use. This apparently made the critical difference to the jury on the negligence and inadequate warnings claims. Prior to this trial, Merck had won eight and lost four Vioxx cases. Another case ended in a mistrial. See Linda Johnson's story for The Associated Press.
March 2, 2007
Screening for Silicosis? Or for Dollars?
Most Health Services, a New Jersey medical screening company, has been fined by the Pennsylvania Department of Environmental Protection for X-raying potential silicosis plaintiffs in motel parking lots without prior written authorization or the presence of a licensed medical practitioner. The company has appealed the $80,500 fine. The fine stems from allegations raised in silica litigation in Pennsylvania state courts that plaintiffs' counsel - in this case, Provost & Umphrey of Beaumont, Texas - improperly employed mass screening to recruit plaintiffs for the litigation. This dispute is part of the continuing fallout form U.S. District Judge Janis Jack's 2005 ruling saying that most of the silicosis claims transferred to her for MDL management were without merit. See Peter Geier's article for The National Law Journal.
March 1, 2007
China Considers Vehicle Lemon Law
As if any further evidence were needed that the People's Republic of China is no longer a Third-World nation living on the fringe of the world's economy, China's Administration of Quality Supervison, Inspection, and Quarantine (AQSIQ) has proposed its own version of U.S. motor vehicle "lemon laws." The draft regulation gives extensive protection to personal vehicle purchasers and users. Vehicle manufacturers and dealers have expressed strong objections to the proposal. A date for implementation of the draft regulation has not yet been determined. See the story from Smith & Partners, Hong Kong.