Saturday, April 22, 2006
An intermediate California appellate court affirmed yesterday a $28 million punitive damages verdict over $850,000 in compensatory damages in a tobacco case against now-Altria. The original verdict was for $28 yes-that's-a-b billion in punitives.
The opinion [PDF] indicates, among other things, that the decedent started smoking in 1956 when she was 17, and smoked for 45 years. And it has a lengthy chronology of events in the tobacco industry's history that it uses to justify the punitives award. It's also got an interesting preemption discussion.
The punitives discussion is fairly lengthy; its conclusion:
In summary, we conclude that Philip Morris’s conduct was extremely reprehensible, that the approximately 33-to-1 ratio of punitive damages to compensatory damages is not constitutionally excessive in light of the extreme reprehensibility of the misconduct, including the vast “scale and profitability” of the course of misconduct, and that those considerations together with Philip Morris’s financial condition justify the $28 million punitive damages award for purposes of the due process clause. We therefore reject Philip Morris’s contention that the award is constitutionally excessive.
Next, we'll see what the California Supreme Court says about it...
Friday, April 21, 2006
Several suits have been filed over the contact lens solution that may be associated with a fungal condition that has (at least in one case) allegedly permanently harmed users' corneas.
Thursday, April 20, 2006
From the AG's press release [PDF]:
PRODUCT LIABILITY. IMMUNITY FROM PUNITIVE DAMAGES. INITIATIVE
Prohibits courts from assessing damages to punish defendants (punitive
damages) when a product causes injury or harm if, at time of manufacture, distribution
or sale, the product or the product's warning information was in material compliance
with existing laws, regulations or governmental standards. Immunity from punitive
damage awards would be required unless injured party could prove, with clear and
convincing evidence, that manufacturer, distributor or seller intentionally withheld or
misrepresented information required by a governmental agency, and that such action
was causally related to consumer injury. Measure applies to pending lawsuits.
Summary of estimate by Legislative Analyst and Director of Finance of fiscal
impact on state and local governments: Potential unknown reductions in revenues to the
state and local governments resulting from a potential decrease in punitive damage
awards in certain product liability lawsuits. (SA2005RF0147.)
The Secretary of State's tracking number for this measure is 1205 and the
Attorney General's tracking number is SA2005RF0147.
The proponent for this measure, John H. Sullivan, must collect 373,816
signatures of registered voters, which is five percent of the total votes cast for governor
in the 2002 general election. The 150-day deadline to collect signatures is July 17,
2006. The initiative proponent can be reached at 916-446-6752.
For the complete texts, titles, summaries and circulation calendars, please call
the Secretary of State's Press Office at 916-653-6575.
According to the Sierra Club (which opposes the measure), Chevron supports it; such support may be related (per this LAT story) to the MTBE litigation. The measure was created by the Civil Justice Association of California.
[via Wandering Bell.]
The AP has coverage.
Drinking water supplies near a DuPont facility in New Jersey have been contaminated with chemicals, including a suspected carcinogen used in the production of Teflon, according to a federal lawsuit filed Tuesday.
* * *
The plaintiffs are seeking class-action status and compensatory and punitive damages for what they describe as the "intentional, knowing, reckless and negligent acts and omissions of DuPont in connection with the contamination of human drinking water supplies."
In a statement, DuPont said the lawsuit, filed in U.S. District Court in New Jersey, is without merit.
"We are confident in the safety of our operations at our Chambers Works site," the company said.
According to the lawsuit, DuPont has known for years that PFOA was being released into the air from operations and activities at the Chambers Works Plant, and was contaminating the groundwater underneath.
DuPont has previously settled a lawsuit involving alleged PFOA groundwater contamination in West Virginia, with the potential total payout exceeding $300 million.
Wednesday, April 19, 2006
The Yokohama District Court rejected a request for punitive damages in a design defect case involving a wheel coming off a Mitsubishi large truck. Of note, the decision is a rejection of the concept of punitive damages more generally (there is evidently no precedent for them) just simply the rejection in this case:
Presiding Judge Hiroshi Yamamoto said in the decision, "The imposition of punitive damages, which is aimed at punishing an offender, is not congruous to our country's legal system," noting that the purpose of compensation in a damages suit is to cover losses suffered.
It's the sort of case that, at least on what's mentioned in the article, would be rather likely to result in punitives here:
The ruling said the wheel which came off the Mitsubishi trailer hit the woman who was walking together with her two children on a sidewalk in Seya Ward, Yokohama, on Jan. 10, 2002.
Mitsubishi's failure to fix the defect in the vehicle for a long time despite being aware of it was "extremely heinous," the decision said.
Mitsubishi had feared a possible decline in its corporate image and further losses if it had recalled vehicles from the market, the ruling said. "The result was serious," it added.
The maker covered up information on its vehicle defects and made false reports to the government over a period of more than 20 years, it said.
Executives have also been charged criminally.
Tuesday, April 18, 2006
The New Jersey Vioxx verdict triggered this piece, criticizing Michigan's broad law protecting pharmaceutical companies from warnings claims when the drug carried FDA-approved labeling.
I published a piece in the Minnesota Intellectual Property Review (now the Minnesota Journal of Law, Science & Technology) a couple of years ago suggesting a middle ground based on the presumption of validity in patent litigation. There are probably a few things in there I'd write differently now, but what else is new?
(As usual, a disclosure: in practice I did pharmaceutical tort defense litigation and continue in a small consulting role today.)
Monday, April 17, 2006
The new scheduling order is up! [PDF] Whoo-hoo!
Too much enthusiasm for an MDL hearing, in the not-particularly-exotic locale of Kansas City? Okay, you're probably right. Still, some torty goodness is promised in the matters up for argument. Plus, a new feature, where I check the number of ads for lawyers for the various proposed MDLs.
- Regeneration Technologies lawsuit: Evidently some not-authorized-for-human-use tissue was used; it hadn't been properly tested for various diseases. Oops. Google AdSense plaintiffs' firm ad count: 2.
- Toyota Sienna AWD Tire Products Liability Litigation: Not sure what this is other than what one can infer from the name of the case. I have a non-AWD Sienna and don't believe I've gotten a recall notice, but that doesn't mean much. Google AdSense plaintiffs' firm ad count: 0. (Lots of offers to sell you tires, though.)
- Seroquel Products Liability Litigation: Anti-psychotic drug tied to Type II diabetes. Google AdSense plaintiffs' firm ad count: 5. (But Schmidt and Clark, your ad results in a 404 error.)
- "A Million Little Pieces" Litigation: Ah, the good ol' days. (All the way back in February.) Google AdSense plaintiffs' firm ad count: 0. What, nobody wants to spend the money to get some more clients? So sad...
- Greek air crash 8/2005: Self-explanatory. No Google ads.
For context, the maximum number of Google AdSense listings appears to be ten, though of course there can be more advertisers than that cycling through the listings. See this earlier entry for a bit more on lawyers and Google ads, as well as links to other sites discussing the same.
The University of Minnesota is presenting a conference on April 21, addressing "pressing issues posed by the challenge of protecting our food supply from terrorist threats. National experts will address publich health responses, industry considerations, consumer perspectives, risk analysis, and defense. An expert roundtable will address the future of food protection and defense."
Looks interesting, and the speaker list is broad and varied.
The authors of the article in the Post this morning about Boeing were online for a chat today as well. Starts right out with something that could easily be part of a Torts or Products exam:
Laurel: Since Boeing has almost no directly comparable competitors, do we know whether these practices would be standard and accepted in the industry, if there was a "rest of the industry" to compare Boeing to?
Sara Kehaulani Goo: That's a great question. It's true that Boeing does not have any direct US competitors but it does compete globally with Airbus, which is based in France. Airbus must meet FAA specifications for its planes to be certified to fly here. And smaller US aviation manufacturers such as Cessna, must also meet FAA requirements for manufacturing. The FAA rules are clear that manufacturers must outline certain design and manufacturing specifications that their suppliers must meet and if they don't, then they have to have a process in place to review a part that is not built according to design. That part is pretty standard across aviation from what we understand.
Some other interesting parts there as well, including a discussion of the motivations of the whistle-blowers and a note that their suit has been dismissed and refiled.
Sunday, April 16, 2006
I was pleased to see the Oklahoma Alliance of Physicians for Tort Reform post the actual questions and methodology used for its tort reform survey, especially since they do rely upon it in editorials and the like.
But I can't say I'm overwhelmed by the survey. The opening paragraphs tell the recipients on whose behalf the survey is being completed:
Physicians are frequently asked by the media and patients for accurate numbers that describe the effects of medical liability on our practices. The Oklahoma Alliance of Physicians for Tort Reform requests that you fill out this short questionnaire which we are distributing to Oklahoma physicians. The results will be collected, and if a sufficient number of responses can be obtained, it will be used to help inform legislators, media and the public.
And the questions suggest the hoped-for (or at least expected) answer rather enthusiastically ('Do you practice “defensive medicine”? [More testing, referring, or visits than necessary because of the threat of lawsuit.]")
It's certainly still of concern that 87% of doctors answered "yes" to the defensive medicine question. And the response rate isn't bad (775 out of 8.327). But it's still a pretty good distance from answering the questions definitively.