December 31, 2007
A Congressional Push for Increased Product Safety
Jim Tankersley and Maurice Possley note in a Chicago Tribune article that "[a] year of recalls and lead scares in the toy industry is spurring Congress toward the largest overhaul in decades of the nation's product safety watchdog," and that "House and Senate leaders say the question isn't whether Congress will send President Bush a product safety bill early next year; it's how far the reforms will go." The article is a good summary of recent Congressional action relating to product safety.
December 29, 2007
"State Health Officials Fault Lack of Federal Action on Waterproofing Sprays"
A New York Times article by Eric Lipton says that "[t]he Consumer Product Safety Commission is unnecessarily leaving the American public at risk through its failure to properly investigate a long-running series of lung injuries tied to widely available waterproofing sprays," according to public health officials from several states. The problem involves inexpensive water-repelling sprays sold nationwide that rely on a Teflon-like chemical, called a fluoropolymer, which, when inhaled, may cause lung inflammation, preventing a person from getting enough oxygen. The problems it causes are typically not life threatening and there is no accurate count of the number of consumer who have been sickened because of the sprays. The article notes "[t]he illnesses in recent years have been associated with a range of waterproofing products besides Kenyon Water Repellent, including Jobsite Heavy Duty Bootmate, Rocky Boot Weather and Stain Protector, and Stand ’n Seal grout sealer," and that "the Consumer Product Safety Commission has issued a recall on only one, Stand ’n Seal, which had been involved in the most severe injuries, including two deaths." Two other products, "Jobsite and Rocky Boot, were removed from sale last year at the request of Michigan officials." State officials have been critical of the lack of a federal response to the problem.
December 28, 2007
Ohio Supreme Court Upholds Statutory Caps on Punitive and Compensatory Damages Against Constitutional Attack
In Arbino v. Johnson, Slip Opinion No. 2007-Ohio-6948 (December 27, 2007), the Ohio Supreme Court upheld caps on damages from 2005 Ohio tort reform legislation in a 5-2 opinion. Chief Justice Moyer wrote for the court. Justice O'Donnell dissented in part and Justice Pfeifer issued a strongly worded dissent. The case was a products liability action initiated against Johnson & Johnson, Ortho-McNeil Pharmaceutical, Inc., and Johnson & Johnson Pharmaceutical Research & Development, L.L.C., alleging that she suffered blood clots and other serious medical side effects from using the Ortho Evra Birth Control Patch, a hormonal birth-control medication that Johnson & Johnson created. The plaintiff filed suit in S.D. of Ohio. Her complaint challenged the constitutionality of four tort-reform statutes implemented on April 7, 2005 in Ohio. The plaintiff moved for partial summary judgment on the challenges and the State of Ohio intervened. While the motion was pending, the federal Judicial Panel on Multidistrict Litigation consolidated the case with other claims relating to the Ortho Evra patch before Judge David A. Katz in the U.S. District Court for the Northern District of Ohio. Judge Katz certified four questions concerning the constitutionality of the statutes to the Ohio Supreme Court, three of which were accepted by that court. The first concerned the constitutionality of Ohio Rev. Code Ann. § 2315.18, which limits noneconomic damages to the greater of (1) $250,000 or (2) three times the economic damages up to a maximum of $350,000, or $500,000 per single occurrence. The statutory limits are inapplicable if the plaintiff suffered "[p]ermanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system," or [p]ermanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities." The second was a challenge to Ohio Rev. Code Ann. § 2315.20, which provides for the admission of collateral source evidence in tort actions. The third was a challenge to Ohio Rev. Code Ann. § 2315.21, the statutory cap limiting punitive damages to two times the amount of compensatory damages awarded a plaintiff per defendant. The plaintiff argued that the statutes violated various provisions of the Ohio Constitution, including her right to jury trial, due process, a remedy, an open court, and her right to equal protection. The supreme court held that the statutory caps on compensatory and punitive damages did not violate the Ohio Constitution. The court did not rule on the challenge to the collateral source statute because the plaintiff lacked standing to challenge that provision.
December 27, 2007
Shopping Channel HSN Agrees to Pay $875,000 Civil Penalty
On December 27, the Consumer Product Safety Commission announced that HSN LP (previously known as the Home Shopping Network) of St. Petersburg, Fla., agreed to pay a civil penalty of $875,000 in settlement of allegations that it failed to make a timely report, as required by federal law, of serious injuries and hazards associated with the Welbilt Electronic Pressure Cookers. The CPSC alleged that HSN received at least 25 reports from consumers indicating a defect that could create a substantial product hazard or that the pressure cookers created an unreasonable risk of injury over a period fro September of 2001 through about October of 2004. HSN LP reported information concerning the pressure cookers to the CPSC in February of 2005. The pressure cookers were the subject of a recall in June and October of 2005. HSN denied CPSC’s allegations that it violated the CPSA in agreeing to settle the matter.
Fifth Circuit Refuses to Permit Texas Plaintiff to Dismiss Accutane Case with No Prejudice to Avoid Texas Statute of Repose
A recent Fifth Circuit case provides a good illustration of the impact of conflicts of laws rules in products liability cases. In Hyde v. Hoffman LaRoche, Inc, 2007 WL 4441065 (5th Cir. Dec. 20, 2007), the plaintiff claimed that he suffered physical and psychological injuries from ingesting Accutane, a prescription drug, during the early 1980s. He brought suit against the manufacturer and distributor of Accutane in Texas state district court, but the case was removed to federal court based on diversity jurisdiction. The defendants moved for summary judgment on the basis that the plaintiff's claims were barred by a Texas statute of repose, see Tex. Civ. Prac. & Rem.Code § 16.012(a), (b) (Vernon's 2003), barring the filing of a "products liability action" beginning on "the date of the sale of the product by the defendant." Hyde admitted that the last time he took Accutane was almost 20 years before he filed his suit, but in response to the motion for summary judgment he asserted that the statute of repose would violate the “open courts” provision of the Texas Constitution if it applied to his claims, and, in addition, that his claims fell within the statutory exception for latent diseases. He did not produce any evidence that he actually satisfied that exception, but instead argued that it was sufficient under that exception if he alleged facts meeting the exception's elements.
Prior to responding to the summary judgment motion, however, Hyde moved to dismiss all his claims without prejudice pursuant to Fed.R.Civ.P. 41(a)(2), stating that he “no longer desire[d] to prosecute th[e] action.” The Roche defendants opposed dismissal and urged the court to rule on the pending motion for summary judgment, arguing that they would be prejudiced if Hyde refiled the lawsuit in a state without an applicable statute of repose.
At some point in the litigation, Hyde filed a virtually identical suit against the Roche defendants in New Jersey state court. The Roche defendants brought this to the attention of the federal district court in Texas and advised the court that New Jersey does not have an applicable statute of repose and argued that New Jersey's choice-of-law rules would likely not result in a New Jersey court applying the Texas statute of repose.
The Fifth Circuit concluded that the Roche defendants had a viable defense under Texas law, since irrespective of whether Texas or New Jersey law applied, the case would be resolved by the application of Texas's choice-of-law rules, which means that Hyde would have to establish that his claim was filed within the time permitted by the Texas products liability statute of repose.
The court vacated the district's order dismissing the case without prejudice and remanded for proceedings consistent with its opinion.
December 24, 2007
What Happens After the Recall?
A New York Times article by Louise Story and David Barboza focuses on the aftermath of the recent recalls of lead-tainted products. The article notes that the recall is only the first step in the process. The second step is to get the recalled products back and the third to dispose of them. Strict federal regulations govern the disposal of recalled products, but only those that are returned, and recalls in general generate only limited returns, leaving most of the recalled products in the hands of consumers. In addition, there is no federal law preventing the resale of recalled products, however. Nonetheless, e-Bay and others have tried to keep recalled products off the market. Recalled products may show up in other countries, although how they get there is uncertain.
December 22, 2007
Medtronic to Settle Defibrillator Suits for $114.1 Million
A Minneapolis StarTribune article by Janet Moore today notes that on Friday, Medtronic Inc. said that it had reached a $95.6 million settlement of 2,682 lawsuits filed by patients who sued following a 2005 safety recall of one of the company's heart defibrillators. The total settlement, with the addition of $18.5 million in attorney's fees, is $114.1 million. The suits stemmed from the February 2005 recall of 87,000 Marquis implantable cardioverter defibrillators after the failure of batteries in a small number of the devices. The suits were consolidated in U.S. District Court for the District of Minnesota. Medtronic did not admit liability in the case.
December 21, 2007
Out-of-State Lawsuits Flood Minnesota Courts
A recent ABA article, "Lawsuits Travel Up North," by Mark Hansen points out that Minnesota has become a haven for products liability lawsuits arising in other jurisdictions. Minnesota has longer statutes of limitations for negligence (six years) and strict liability (four years) actions than most jurisdictions, but following the repeal of Minnesota's borrowing statute, that time-barred claims in those jurisdictions still have life in Minnesota, which pursuant to its conflict of laws rules treats statutes of limitations as procedural rather than substantive rules. The result, as Hansen notes, has been a flood of products liability actions filed in state and federal courts in the land of ten thousand lakes against out-of-state pharmaceutical companies and medical device makers. Scott Smith, a Minneapolis defense lawyer who was interviewed for the article, said that out-of-state plaintiffs comprise about 93 percent of drug and medical device cases filed in Minnesota since May of 2004, when state and federal court filings went online.
American Tort Reform Association's New List of "Judicial Hellholes"
The American Tort Reform Association recently released its sixth annual "Judicial Hellholes" report. The Executive Summary defines hellholes as "places where judges systematically apply laws and court procedures in an inequitable manner, generally against defendants in civil lawsuits." ATRA's six hellholes are South Florida; Rio Grande Valley and Gulf Coast, Texas; Cook County, Illinois; West Virginia; Clark County, Nevade, and Atlandic County, New Jersey.
December 19, 2007
House of Representatives Passes Consumer Product Safety Modernization Act by a 407-0 Vote
On Wednesday the House of Representatives approved H.R. 4040, the Consumer Product Safety Modernization Act, by a 407-0 vote. The bill represents a comprehensive approach to improving consumer safety and provides for the first reauthorization of the Consumer Product Safety Commission in 15 years. The bill would eliminate lead from children's products, increase CPSC funding, and require toy testing by independent labs, the Senate adjourned without taking up the House bill or a Senate committee version passed in October. See the Wall Street Journal and Washington Post articles for a more detailed analysis.
December 18, 2007
Congress Approves Pool Safety Legislation
Congress has approved pool safety legislation in response to serious injuries sustained by a 6-year-old Minnesota girl who had part of her intestinal tract torn out by the suction of a drain at a wading pool. The girl, Abigail Taylor, was hospitalized for weeks after the injury, which occurred when she sat over an open drain hold in a Minneapolis Golf Club wading pool. She is expected to need a feeding tube for the remainder of her life. The pool legislation would ban the manufacture, sale, or distribution of drain covers that do not meet the safety standards in the legislation. AP
December 17, 2007
Sears Settlement of Tipping Stove Class Action in January?
A South Florida Sun Sentinel article by Diane C. Lade reports that according to a class action settlement scheduled for approval in January, Sears Roebuck & Co. has agreed to place anti-tip brackets on all free-standing or slide-in stoves or ranges that were purchased in their stores during the past seven years, or provide refunds to customers who paid to have the stabilizers installed. One of the plaintiffs' lawyers, Steve Tillery, said Sears could pay up to $400 million to settle all claims, which involve some 5.7 million appliances. The lawsuit stems from actions filed in Illinois and Texas alleging that Sears was not installing the safety devices unless buyers asked for them or were willing to pay extra for them.
December 16, 2007
New Lawsuits Against AMO Over Recalled Contact Lens Solution
A Schmidt & Clark press press release notes that twenty additional lawsuits were filed the past week against Advanced Medical Optics, Inc., a contact lens solution maker, in state court in Los Angeles and Orange Counties in California. The plaintiffs reside in California and numerous states. The suits are based on alleged injuries caused AMO's Complete® brand of contact lens disinfectant solutions, and seek compensatory and punitive damages. AMO voluntarily recalled Complete® MoisturePlus™ multipurpose solution on May 25 at the FDA's request after the Centers for Disease Control linked the solution to the outbreak of Acanthamoeba keratitis, a serious corneal infection. The plaintiffs in the case are alleging that AMO was aware that its solution was ineffective against the infection-causing organism and even altered the formula in a way that increased the risk of disease, yet did not warn consumers of the risk. The suits add to numerous other suits already filed. The new suits follow the ruling of a California state judge ordering the consolidation of all past and future cases in a single court.
December 13, 2007
U.S. and China Sign Product Safety Agreements
A Wall Street Journal article by Jason Leow and Jane Zhang reports that China has signed product-safety agreements with the Bush administration that will place a greater burden on China to regulate exports of food, aminal feed, drugs and medical devices. Product exporters will have to register with the Chinese government, which in turn will certify that the products meet U.S. FDA standards. The agreement was signed by Mike Leavitt, Secretary of Health and Human Services, as part of current trade talks with China.
December 2, 2007
Supreme Court Will Hear Importand Medical Device Preemption Case
On Tuesday, December 4th, the U.S. Supreme Court will arguments in an important products liability case in which a medical device manufacturer argues that a plaintiff's state common law tort claims of negligent design and warning are preempted by the Medical Device Amendments to the Food, Drug and Cosmetics Act (MDA). Riegel v. Medtronic is a suit on behalf a patient who was injured by the use of a balloon catheter device while undergoing an angioplasty. The trial court ruled that the plaintiff's negligent design and warning claims were preempted but that manufacturing defect and breach of express warranty claims survived. The Court of Appeals for the Second Circuit upheld that ruling and the plaintiff later lost the manufacturing defect case. The lower courts' rulings were based on the language in section 360k(a) of the MDA preempting conflicting state law "requirements" for medical devices that have been approved after undergoing the Food & Drug Administration's extensive "pre-market approval" (PMA) process. In Medtronic v. Lohr, a 1996 preemption decision concerning the MDA, the court ruled that there was no preemption of state law claims with respect to a device that had only been subjected to the FDA's much more abbreviated approval process under section 510k of the MDA. See Chrisopher Snowbeck's article for the Saint Paul Pioneer Press.