May 13, 2008
R.I. Supreme Court Will Webcast Arguments in Lead Paint Nuisance Appeal
The much-anticipated oral arguments in the various appeals in Rhode Island v. Lead Industries Association will be webcast over the internet on May 15, 2008. Arguments begin at 9:00 AM EDT. At trial, the defendants were found liable on a public nuisance theory for abatement costs stemming from the use of lead-based paints decades ago. Of the several issues on appeal, two are of particular interest: (1) whether the manufacturing and sale of lead-based paint was, at the time, a public nuisance, and (2) the state's use of a contingent fee agreement with private counsel to prosecute the state's case. Similar suits in other states have been rejected with courts essentially finding that a lawful activity, not known to be dangerous at the time of the activity, cannot amount to a public nuisance. The second issue raises the essential question of whether counsel with a financial interest in the outcome of the litigation can maintain the degree of neutrality demanded by prosecutions in the public interest.
May 12, 2008
Second Circuit Rejects NYC's Nuisance Suit Against Gun Industry
The U.S. Court of Appeals for the Second Circuit has dismissed a public nuisance suit brought by New York City against gun manufacturers and wholesalers. The court reversed the federal trial court's ruling that the case fit within an exception to the Protection of Lawful Commerce in Arms Act (PLCAA), a federal law enacted in 2005 to shield gun manufacturers and sellers from civil liability for the gun-related criminal actions of others. The PLCAA contains an exemption for lawsuits alleging that a gun manufacturer or seller knowingly violated a state or federal statute "applicable to the sale or marketing of" firearms. The plaintiffs argued that New York's second-degree criminal nuisance law was "applicable" to the sale or marketing of firearms. The court disagreed, concluding that the word "applicable," when read in context, meant only firearms-specific statutes actually regulating the firearms industry. The state's generally-applicable criminal public nuisance statute was not such a statute and therefore did not fit the exception in the PLCAA. See the report in Product Liability Daily.
May 7, 2008
Trial Court Adopts Colacicco Preemption Ruling
Adopting the recent ruling by the Third Circuit in Colacicco v. Apotex, Inc., 521 F.3d 523 (3rd CIr. 2008), a federal trial judge in Illinois has ruled that the U.S. Food & Drug Administration's repeated rejection of a scientific basis for suicidality warnings on the prescription drug Paxil, preempted the plaintiff's state law failure-to-warn claim brought against the drug's manufacturer, SmithKlineBeecham (Mason v. SmithKlineBeecham Corp., C.D. Ill., No. 05-1252, 4/23/08). Paxil is an antidepressant, one of several selective serotonin reuptake inhibitors (SSRIs). The FDA has monitored the possible connection between SSRIs and suicide for nearly 20 years and has concluded that the suicide warnings desired by the plaintiff in Mason are without scientific basis and would therefore be false and misleading. The plaintiff's state tort law claims that, without such warnings, the drug's labelling and use information were false and misleading directly contradicts the FDA's express conclusion to the contrary. The plaintiff's information defect claim is thus preempted. See the report in Product Liability Daily.