October 6, 2007
Cub Scout Badges Recalled - You Guessed It, Lead
In what is somehow among the saddest of the recalls, Consumerist.com reports that 1.6 million Cub Scout badges are being recalled. Yes, they're from China, and yes, they have an excess of lead. A quick glance at the scouting website does not reflect the recall, though it may be there somewhere.
October 5, 2007
Topps Meat Recall: Let the Filing Begin
In unsurprising news, lawsuits have begun in response to the massive meat recall from the Topps Meat Company, as have lawyer Adsense ads:
On NPR's new HD/online/podcast show The Bryant Park Project, Joe Palca (NPR's science correspondent) had a context piece arguing for, if not calm, something less than panic about e. Coli and its showing up in meat from time to time. It's got good background and a good reminder of the balancing involved in most consumer products.
NYT: More Doctors in Texas Post Liability Changes
The NYT today has a story on the evident increase in physician supply in Texas after that state modified its medical malpractice liability provisions and, among other things, malpractice insurance rates dropped (whether due to the modifications or not).
While it notes the potential for other explanations, the tone of the article overall seems to endorse the connection (which seems quite plausible). It also raises the better question of whether the increase on physician supply is worth whatever tradeoff is involved.
There's nothing much new to anyone who's been following the debate carefully already, but it's a nice summary.
9/11 Opt-Outers Settle
A number of the 9/11 victims' families have settled their claims, saying that the information they were able to obtain in discovery was their primary goal. Findlaw has the AP story; the Baltimore Sun has its own reporting, focusing on the plaintiffs' plans for the money, much of which will go to form a foundation ((the amount is not specified).
October 4, 2007
Some Other Resources on Tort Law
The folks at our law library do a monthly online publication called CyberCites, each month focusing on a different subject area. This month, it's Personal Injury Law, and they've got a nice batch of sites (including, happily, this one).
Just to give you a sense of how recalls are going these days, I thought I'd note the introductory parts of today's CPSC recall e-mail newsletter. I've been getting this newsletter since I started editing the blog, and typically it has had one or two recalls. Today, well, it's more:
1. KB Toys Recalls Wooden Toys Due to Violation of Lead Paint Standard
2. Kids II Recalls Baby Einstein Color Blocks Due to Violation of Lead Paint Standard
3. Eveready Battery Co. Recalls Toy Flashlights Due to Violation of Lead Paint Standard
4. Dollar General Recalls Tumblers Due to Violation of Lead Paint Standard
5. CKI Recalls Children's Decorating Sets Due to Violation of Lead Paint Standard; Sold Exclusively at Toys "R" Us
6. Key Chains Recalled by Dollar General Due to Risk of Lead Exposure
7. Antioch Publishing Recalls Bookmarks and Journals Due to Violation of Lead Paint Standard [Ed. note: Bookmarks and journals have paint?]
8. Sports Authority Recalls Aluminum Water Bottles Due to Violation of Lead Paint Standard
Stent Safety & Patents
The NYT has a piece today on the prolific patent litigation among stent manufacturers. (Indeed, the longest trial I saw while clerking was a patent trial over stents.) It leads with an interesting anecdote:
Why would a company argue in court that its medical product is dangerous, even as it plays down the risks in public?
Johnson & Johnson did just that recently as part of its long battle for supremacy in cardiac stents. Its lawyers told a federal judge in Delaware that because medical studies had linked the company’s drug-coated Cypher stent to blood clots, it could not have infringed a competitor’s patent.
How so? Because, the lawyers said, the patent in question, held by Boston Scientific, claimed that the coating did not cause clots.
That reasoning — in essence, our product isn’t covered by Boston Scientific’s patent because our product is a health hazard — did not impress Judge Sue L. Robinson, who last week affirmed a jury’s patent infringement verdict against the Cypher.
"But Mommy, I Like the Placebo Effect!" - Possible Changes for Pediatric Cough Syrup & Cold Medicines
NPR's Morning Edition had an interesting story today about the developing research relating to cough and cold treatments for children. Most were approved a long time ago, and it turns out the evidence for efficacy is, well, not particularly extensive, though there's also not a lot of danger when used as directed.
"I don't believe that these medications, in the recommended doses … are dangerous," says Dr. Ian Paul, a pediatrician at Penn State College of Medicine. "But I don't believe they work."
* * *
[H]e and a group of colleagues conducted their own, small study. They recruited the parents of 100 sick children and had them administer a single, bedtime dose of medicine. Some children got the real thing, a combination of dextromethorphan, a standard cough suppressant, along with the antihistamine Benadryl. Other children, unbeknownst to them and their parents, were given a placebo syrup.
"Parents found there was no difference between the two medicines or the placebo in how much their child coughed or how well they slept," Paul says.
FDA Contemplates a New Category of Pharmaceutical
There's over-the-counter, prescription-only, and now, maybe, behind-the-counter. Perhaps inspired in part by Barr Labs' Plan B (which is behind the counter and requires an ID to obtain), the FDA is thinking of carving out a new category of drugs. From the WSJ story:
The agency said it wants input such issues as whether there should be a behind-the-counter status for certain drugs and whether the status should be a transitional way for prescription products to eventually move to over-the-counter status, where consumers can purchase products on store shelves. Other questions include the impact on patient safety and whether it would improve access to medications.
The agency said certain logistical questions would need to be addressed, including pharmacy storage and dispensing of the medications along with questions about whether and how pharmacists might be reimbursed.
October 3, 2007
More Litigation Against the Patriots
Our regional NFL team, the New England Patriots, already is dealing with a purported class action misrepresentation claim based on, well, something to do with the coach's admitted videotaping of opponents' defensive signals.
But now it gets better, with a prolific inmate pro se litigant going after Belichick for, among other things, placing a listening device in Donovan McNabb's soup (McNabb appears in ads for Campbell's chunky soup). It's no snake head in the green beans, but it would be a surprise, no?
USSC Denies Cert In Engle (Tobacco) Case
The WSJ reports that the U.S. Supreme Court has denied certiorari in Engle:
The industry in July 2006 won a largely favorable ruling from the Florida Supreme Court, which refused to reinstate the $145 billion in punitive damages awarded by a Florida jury and declined to revive the lawsuit's class-action status.
The Florida court, however, allowed the up to 700,000 individuals who could have won judgments under the original verdict to use findings from the extensive jury trial to bring new cases against the tobacco companies.
. . .
The tobacco companies asked the Supreme Court to bar smokers from using the existing jury findings to bring new cases, a maneuver Florida state courts said would speed up the 14-year-old tobacco litigation as it moved forward. The companies also argued that federal tobacco advertising laws bar state-level lawsuits over tobacco marketing and the failure of companies to warn of smoking risks.
October 2, 2007
FDA Warns Against Use of Cold Meds by Toddlers
ABC News reports that the FDA has may be moving a step closer to banning over-the-counter cold and cough medicines for children under two.
The labels on most boxes suggest that parents "consult with a doctor" about the appropriate dosage for children under the age of 2. The FDA review called that warning "confusing," and said it appeared to be contributing to "medication errors, which can result in fatal overdoses."
This move is part of the FDA's larger ban on unapproved hydrocodone products. On October 1st, the FDA published a Federal Register notice banning the manufacturer and distribution of unapproved hydrocodone products. A list of approved hydrocodone products is available on the FDA website.
5 States to Sue Bush Administration Over CHIP
The New York Times reports that New York Governor Eliot Spitzer announced yesterday that New York plus 3 other states plan to sue the federal government over the Bush Administration's recent income limits on the Children's Health Insurance Program (CHIP). As previously noted, Washington Governor Christine Gregoire announced her plans to sue last week. In addition to New York and Washington, Spitzer said Maryland and Illinois would join as plaintiffs, with "Arizona, California and New Hampshire filing amicus briefs in the case."
Separately, New Jersey filed its own complaint on Monday in the United States District Court for the District of New Jersey. As stated in a press release by New Jersey Governor Jon Corzine, "[t]he lawsuit accuses the Bush Administration of circumventing the public rule-making process by fundamentally and arbitrarily changing the program via letter, which would have the effect of denying health insurance coverage for over 10,000 New Jersey children."
October 1, 2007
Sebok's Part II on NJ Supreme Court's Vioxx Ruling
Tony Sebok's latest Findlaw column continues his analysis of the New Jersey Supreme Court's decertification of the Vioxx class action brought on behalf of unions and health plans against Merck. In this latest column, Sebok addresses the court's finding that the plaintiffs failed the "superiority" standard for class certification. That is, the court concluded that plaintiffs failed to show that the class action was a superior method for resolving the claims because the high-dollar value of their claims made individual suits feasible. Sebok, however, challenges the court's underlying view of the class action as a resolution mechanism for low-value torts, and instead, "see[s] class actions . . . as capable of solving complex problems of settlement and compensation involving large, high-stakes claims."
Top 10 Tort Downloads on SSRN
Listed below are the top 10 downloads for papers posted on SSRN from August 2, 2007 to October 1, 2007 in the Journal of Torts & Products Liability Law :
|1||72||Utility and Rights in Common Law Reasoning: Rebalancing Private Law Through Constitutionalization |
London School of Economics & Political Science (LSE),
Date posted to database: September 17, 2007
Last Revised: September 17, 2007
|2||67||Privatizing Bans on Abortion: Eviscerating Constitutional Rights through Tort Remedies |
University of San Francisco School of Law,
Date posted to database: August 7, 2007
Last Revised: September 17, 2007
|3||66||The Fairness of Malpractice Settlements |
Philip G. Peters Jr.,
University of Missouri at Columbia - School of Law,
Date posted to database: July 18, 2007
Last Revised: July 18, 2007
|4||54||The Limited Autonomy of Private Law |
Tel Aviv University - Buchmann Faculty of Law,
Date posted to database: August 9, 2007
Last Revised: August 9, 2007
|5||50||How Do the State Medical Malpractice Laws Affect the Access to Health Care? |
Jiafeng Sun, Joan T. Schmit,
University of Wisconsin - Madison - Department of Actuarial Science, Risk Management and Insurance, University of Wisconsin - Madison - Department of Actuarial Science, Risk Management and Insurance,
Date posted to database: August 27, 2007
Last Revised: August 27, 2007
|6||47||Reining in the Data Traders: A Tort for the Misuse of Personal Information |
Duke University School of Law,
Date posted to database: August 24, 2007
Last Revised: September 10, 2007
|7||45||The FTCA Discretionary Function Exception and Accounting Malpractice |
Steven L. Schooner,
George Washington University - Law School,
Date posted to database: July 14, 2007
Last Revised: July 14, 2007
|8||43||Evaluating Goldberg and Zipursky's Civil Recourse Theory |
University of Texas at Austin School of Law,
Date posted to database: August 1, 2007
Last Revised: August 23, 2007
|9||41||Teaching Economic Torts |
Jay M. Feinman,
Rutgers University School of Law, Camden,
Date posted to database: July 13, 2007
Last Revised: August 8, 2007
Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949
September 30, 2007
The Drug & Device Blog has a useful roundup of links to discussion around the web about the grant of cert. on a preemption case. Gives you a nice overview of commentary from across the spectrum.