April 21, 2009
Attorneys Highlight Problems Created by the Consumer Product Safety Improvement Act
A National Law Journal article by Marcia Coyle focuses on the continuing debate over the Consumer Product Safety Improvement Act, focusing this time on the difficulties attorneys have in advising their business clients about the impact of the Act. Ken Ross of this blog is quoted in the article. He points out the lack of agreement of some members of Congress over how the Act is being interpreted by the Consumer Product Safety Commission and the difficulty of advising clients in light of that confusion.
April 20, 2009
State Food Inspections Vary Significantly
A New York Times article by Gardiner Harris points out the significant variances in state food inspection. The article notes that while Congress and the Obama administration have noted the need for new food production rules and more inspections, less attention has been paid to fixing the existing fractured system of food inspection. At this point, "uncovering which foods have been contaminated is left to a patchwork of more than 3,000 federal, state and local health departments that are, for the most part, poorly financed, poorly trained and disconnected," according to health officials. Minnesota is singled out for the diligence of its health department's surveillance system.
April 15, 2009
Mega Brands America agrees to $1.1 Million Civil Penalty Arising from Dangers in Magnetic Building Sets
The Consumer Product Safety Commission announced in an April 14 releasethat Mega Brands America has agreed to pay a $1.1 million civil penalty, which the Commission has provisionally accepted, to settle allegations that Mega Brands America, formerly Rose Art Industries, Inc., failed to provide the government with timely information concerning dangers to children presented by Magnetix magnetic building sets. The release notes that "[b]y the time Rose Art [the predecessor] agreed to the recall of Magnetix in March 2006, the firm had received more than 1,500 complaints of magnets falling out of plastic pieces in more than 65 different models of Magnetix," and that "[i]n April 2007, Mega Brands America expanded the recall of Magnetix sets for users of any age, after more than 25 children suffered intestinal injuries that required surgery to remove the magnets."
The release also notes that "[i]n agreeing to settle this matter, Mega Brands America and its parent, Mega Brands Inc., of Montreal, Canada contend that 1) Mega Brands Inc. did not know of the Magnetix defect at the time it acquired Rose Art and 2) Rose Art’s prior owners never advised Mega Brands Inc. of the problems of associated with Magnetix."
April 9, 2009
FDA Update on the Pistachio Recall
The FDA's "In the spotlight" focuses on the recent pistachio recall. The FDA and California Department of Health are continuing their investigation of salmonella contamination in pistachios and pistachio products. Setton Pistachio, Terra Bella, Calif., is voluntarily expanding its recall of roasted pistachios to include all lots of roasted in-shell pistachios and roasted shelled pistachios that were produced from nuts harvested in 2008. Setton is also recalling raw shelled pistachios from the 2008 crop that are not subsequently roasted prior to retail sale. The pistachios may be contaminated with Salmonella. Pistachios are used as ingredients in a variety of foods, so the expanded recall will affect many other products and will lead to other recalls.
If you're not certain about which products are called, check the FDA's searchable database at http://www.fda.gov/pistachios/. The FDA will continue to update the database. It warns consumer to avoid eating pistachios or food products containing them (such as pistachio bakery goods and pistachio ice cream) until they can determine that the products do not contain pistachios recalled by Setton.
Consumer Product Safety Commission Announces $1,055,00 Civil Penalty
The U.S. Consumer Product Safety Commission (CPSC) announced in aTuesday release that 14 firms have agreed to pay a total of $1,055,000 in civil penalties to "settle allegations that the firms knowingly failed to report to the CPSC immediately, as required by federal law, that children’s hooded sweatshirts or jackets they sold had drawstrings at the hood and/or neck." The drawstrings present a strangulation hazard that can cause death to children. The companies recalled the garment as appropriate. The Commission has provisionally accepted the settlements. The firms are listed in the release.
April 8, 2009
NINTH CIRCUIT CERTIFIES STATUTE OF LIMITATIONS ISSUE TO CALIFORNIA SUPREME COURT
In Pooshs v. Phillip Morris USA, Inc., ___ F.3d ___ (9th Cir. April 1, 2009), Nikki Pooshs brought suit against the defendants based upon her terminal lung cancer, alleging a variety of theories, including "(1) negligence; (2) product liability; (3) misrepresentation; (4) fraud and deceit (intentional misrepresentation); (5) fraud and deceit (concealment); (6) fraud and deceit (false promise); (7) fraud and deceit (negligent misrepresentation); (8) concert of action (conspiracy); (9) pre-1969 failure to warn; and (10) off-label failure to warn."
Pooshs was diagnosed with lung cancer on January 31, 2003. She was diagnosed with chronic obstructive pulmonary disease in 1989 and periodontal disease in 1990. She filed suit just under a year after she was diagnosed with lung cancer. The issue was whether the statute of limitations started to run on all claims for tobacco-related physical injuries in 1989 and 1990, in which case her claim for lung cancer would be barred. It is uncontested in the case that the etiology for lung cancer is distinct from the etiology for COPD and periodontal disease.
In Grisham v. Philip Morris,151 P.3d 1151, 1161 (Cal. 2007), the California Supreme Court answered a series of certified questions from the Ninth Circuit concerning the application of California's statutes of limitations in tobacco-related cases. The court did not answer the specific question at issue in Pooshs as to whether injury to separate physical interests might be considered to be an invasion of two primary rights for statute of limitations purposes. The supreme court noted the split in authority in the California courts, but did not resolve the issue. The Ninth Circuit in Pooshs certified the following issues to the California Supreme Court:
(1) Under California law, when may two separate physical injuries arising out of the same wrongdoing be conceived of as invading two different primary rights?
(2) Under California law, may two separate physical injuries-both caused by a plaintiff's use of tobacco-be considered “qualitatively different” for the purposes of determining when the applicable statute of limitations begins to run?
April 3, 2009
Fifth Circuit Applies Texas Learned Intermediary Law to Bar Recovery in Ebel v. Eli Lilly & Co.
In Ebel v. Eli Lilly & Co., ___ F.3d ___ (5th Cir. March 30, 2009), the Fifth Circuit in a per curiam opinion applied the learned intermediary defense to bar recovery in a wrongful death action arising out of Philip Ebel's suicide, allegedly caused by Eli Lilly's drug Zyprexa, an atypical antipsychotic drug, which Mr. Ebel's physician, who was board certified in pain management, prescribed off label to treat Mr. Ebel's severe and chronic headaches. The district court granted Eli Lilly's motion for summary judgment on the basis that the drug warning was adequate as a matter of law and that it was not the producing cause of Mr. Ebel's death. The Fifth Circuit affirmed on the second ground. The court applied Texas learned intermediary law in reaching its conclusion. Texas law requires a showing that the warning is inadequate and that the failure to warn was the producing cause of the injury. While Eli Lilly argued that the warning was inadequate, the Fifth Circuit did not reach that issue, deciding instead that there was no producing cause, given the prescribing physician's familiarity with the side effects, including the suicide risk, associated with Zyprexa, and the lack of evidence showing that an alternative warning would have altered the physician's decision to prescribe the drug.
April 1, 2009
Supreme Court Dismisses Writ of Certiorari in Philip Morris USA, Inc. v. Williams
On March 31 the Supreme Cout of the United States dismissed the writ of certiorari as impovidently granted in Philip Morris USA Inc. v. Williams. The dismissal means that the $79.5 million punitive damages award affirmed by the Oregon Supreme Court in Williams v. Philip Morris Inc. , see 176 P.3d 1255 (Or. 2008) on remand, stands.