TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, January 17, 2009

Twerski on Potential Claims by the Passengers of Flight 1549

The WSJ Law Blog asks the question "Can the Passengers of Flight 1549 Sue for Emotional Distress"?  Of course, one can sue for anything.  However, the piece goes on to evaluate the potential claims, relying on the expertise of Aaron Twerski (Brooklyn).  Here's an excerpt:

“My visceral reaction is that there’s probably no case, because there’s probably no negligence,” Twerski told the Law Blog. Any claim – whether for negligent infliction of emotional distress or for physical injuries — would be predicated on there being negligence, said Twerski. Either ‘you knew or should’ve known that the birds were there and you should’ve taken avoidance measures’ or ‘you should’ve been on notice.’ ”

“If the pilots were warned of the birds,” Twerski said, “and didn’t avoid them, then maybe you have negligence. But from what I read in the papers, this flock just happened on them. And, given the quality of this pilot, he would’ve avoided them had he known. It seems to me that this probably was a real cracker jack.”

He continued: “But, if there is negligence, then these passengers are clearly in the ‘zone of danger’ ” — a requirement for an NIED claim in New York. “So then the question becomes, what’s the damage? Well, it was a harrowing experience, and the people will probably be able to say they’ve suffered emotional distress – such as nightmares and fears – as a result. There’s no question that, if there was negligence and follow-on emotional distress then there’s a cause of action. In any event, I don’t see this as a big dollar item case.”


January 17, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2009

Some Changes at

I haven't done a really careful look, but they've at least removed the references to the site being a resource since 1995.

They've also updated the disclaimer and it's much more detailed and, in my view, a much clearer statement: is currently being sponsored by Brent Coon and Associates, LLC and The Peterson Firm, LLC. Brent Coon and Associates, whose principal office is located at 3550 Fannin Street, Beaumont, TX 77701 , has attorneys licensed to practice in numerous states throughout the country and has 17 offices located from coast to coast. The Peterson Firm's office is located at: 20 N. Orange Ave - Suite 400, Orlando, Florida 32801. The Peterson Firm is licensed by the Florida Bar Association to practice law within the state of Florida. If the Brent Coon and Associates or the Peterson Firm undertakes representation of a client it may do so with assistance of co-counsel in the state where the case is filed. Neither Brent Coon and Associates or The Peterson Firm will share any personal information with any other party, with the exception that in certain circumstances you may be contacted directly by co-counsel for the purpose of evaluating a potential claim., Brent Coon and Associates and The Peterson Firm are separate and distinct entities. is in part owned by an attorney concentrating in asbestos litigation.

Note the final sentence in particular.

Update: The site has reverted to the prior design and language.  Mr. Apelado wrote me this morning, saying that this is a technical issue but that the reversion to the previous version of the site is temporary. 


January 16, 2009 in Products Liability | Permalink | Comments (11) | TrackBack (2)

Personal Injury Roundup No. 21 (01/16/09)

I hope you enjoyed San Diego as much as I did.  It's really cold in Harrisburg.  In torts...

Reform, Legislation, Policy

  • Oregon state Senator calls for attention to tort reform in that state despite budget woes.  (LegalNewsline)
  • The first data stemming from D.C.'s new requirement to report medical errors is available.  A probe will determine whether some hospitals failed to comply.  (DC Examiner)
  • House passes SCHIP; Obama to sign it.  (HealthLawProf)

Trials, Settlements & Other Ends

  • Leaks that Eli Lilly will pay to settle Zyprexa suits prove to be true.  (ABA Journal)


  • Fifth Circuit:  Beryllium Sensitization is not a compensable injury in Mississippi.  (Steenson/Products Liability Prof)


  • Video marketing tips for Lawyers!! (
  • John Day provides statistics about med mal filings in Tennessee during the last year.  (Day on Torts)
  • A series of posts entitled "Anatomy of a California Product Liability Case" is at CalBizLit, via Olson/Point of Law.
  • "Some ignore law to prevent pools from being child deathtraps" (CNN)


January 16, 2009 in Roundup | Permalink | Comments (0) | TrackBack (1)

Thursday, January 15, 2009

Lilly Does Indeed Settle Off-Label Marketing Cases; Includes Misdemeanor Plea

One story is here.  Lilly pleaded guilty to a misdemeanor violation of the FDCA and is paying a $515 million fine, described as the largest fine in history.  The balance of the $1.4 million will go to settle civil claims, both federal and from individual states.

(Other material was posted here; I have removed it.)


(who has done consulting work for pharma companies, though not Lilly, and not in quite a while, maybe around a year)

January 15, 2009 in Products Liability | Permalink | Comments (1) | TrackBack (0)

Two (More) from Legal Theory Blog

In the last two days, Larry Solum has posted on two articles of interest to torts enthusiasts.  First, Joni Hersch and Kip Viscusi (both at Vandy) have posted on SSRN Punitive Damages by Numbers:  Exxon Shipping Co. v. Baker.  Here is the abstract: 

The U.S. Supreme Court decision in Exxon Shipping Co. v. Baker is a landmark that establishes an upper bound ratio of punitive damages to compensatory damages of 1:1 for maritime cases, with potential implications for other types of cases as well. This article critiques the Court's reliance on the median ratio of punitive to compensatory damages in samples of verdicts to set an upper bound for punitive damages awards. Our critique of the approach draws on the properties of statistical distributions and a new analysis of cases with punitive damages awards. The Court's conclusion that a 1:1 ratio establishes a fair upper bound lacks a sound scientific basis.

Second, Lars Noah (Florida) has posted on SSRN This is Your Products Liability Restatement on Drugs.  Here is the abstract:

This paper attempts to offer a comprehensive evaluation of the various facets of the Products Liability Restatement that relate to medical technologies, and it does so from a perspective rooted in the regulatory as opposed to the doctrinal challenges posed by these products. The special provisions applicable to prescription drugs and devices have provoked a great deal of scholarly commentary, and the few courts to consider the issue have uncritically relied upon the published critiques. I find little merit in most of these negative assessments, though I point out some flaws in section 6 of new Restatement that seemingly no one else has identified. Part II addresses production defects, focusing on the heated debate over what standards to use in deciding whether a prescription drug suffers from a defective design. Part III considers defects related to the information that accompanies prescription drugs, especially those advertised directly to consumers. Finally, Part IV touches on some of the peculiar issues raised by investigational products, generic drugs, prescription medical devices, and the duties of non-manufacturing sellers.


January 15, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Welcome to the Blogosphere to NewYorkInjuryCasesBlog

The blog, written by John Hochfelder, has been online for about a month and will focus on pain and suffering awards.


January 15, 2009 | Permalink | Comments (1) | TrackBack (0)

Atlanta Journal-Constitution Opposes Proposal to Protect FDA-Approved Drugs

The editorial is available here.  The opening paragraph:

Here are four compelling reasons why Gov. Sonny Perdue’s proposal to create a liability-free haven for drugmakers threatens the welfare of Georgians —- Vioxx, Rezulin, fen-phen and Bextra.


(who has done consulting for pharma companies)

January 15, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 14, 2009

Lilly May Be Settling Zyprexa Cases

The NYT reports that Lilly is paying around $1.4 billion (that's with a B) to settle civil and criminal charges in connection with its marketing of Zyprexa.  This is on top of piles and piles of money spent to settle tort cases and some individual state lawsuits.


January 14, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (0)

GA Governor Lists Tort Reform As Priority

At Tuesday's "Eggs and Issues Breakfast," Georgia Governor Sonny Perdue outlined his priorities for 2009, including two tort reform items.   Although the details are vague, the Governor's press release describes a modified loser-pay rule, where a losing plaintiff would bear the costs of the defendant's attorneys' fees if the suit is dimissed "at the earliest possible stage."  In addition, discovery would be delayed "until the legal merits of a complaint have been tested."   The second proposal appears to provide a kind of state-created preemption; the press release provides that the legislation would "protect companies with a significant presence in Georgia from lawsuits if their product received approval from the federal Food and Drug Administration."

Additional coverage at WSB News Radio, Macon Telegraph and Ledger-Enquirer/AP.

- SBS   

January 14, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (2)

Tuesday, January 13, 2009

FDA Issues Guidance on Promotion of Off-Label Use

The FDA has issued a final "Guidance for Industry" which provides "the agency's views on the distribution of medical journal articles and scientific or medical reference publications that discuss unapproved new uses" for FDA-approved drugs and medical devices.  The Federal Register Notice provides:

Some of the changes made to the guidance based on comments received, and on FDA's own initiative, include a specific reference encouraging manufacturers to seek approvals and clearance for new indications and intended uses for medical products. FDA recognizes the value of new indications and uses for approved products and wants these to be studied so that patients and healthcare professionals receive safe and effective treatments.


January 13, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Chicken Case Dismissed

Judge Sessions dismissed the case of three prisoners who sued ConAgra based on allegedly improperly processed chicken.  He did not reject the notion that they may have obtained something other than chicken ("Butts may have eaten something other than chicken meat") but concluded that they failed to show harm.


January 13, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Wanted: Topics for Papers on Scientific Evidence

I am teaching a writing seminar this semester about experts and scientific evidence.  If any readers have topics they've been thinking could use a careful look, please send them along (wchilds AT law DOT wnec DOT edu).  Practitioners, academics, etc., all welcome.


January 13, 2009 in Experts & Science | Permalink | Comments (0) | TrackBack (0)

Acting Directors Named at CDC and FDA

William Gimson III, the Chief Operating Officer at the CDC, will begin serving as temporary Director of the CDC next week when President-Elect Obama is sworn in.   Similarly, Frank Torti, the FDA's current science chief, will begin serving as Acting Commissioner at the FDA effective next week.  The Wall Street Journal has a full report; the WSJ Health Blog also has coverage. 


January 13, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (1)

Thoughts on Libel Tourism

David B. Rivkin Jr. and Bruce D. Brown (both from Baker Hostetler's DC office) had an op-ed in Sunday's WSJ on the phenomenon of libel tourism:  the practice of suing Americans for defamation in foreign courts (particularly England) where First Amendment protections do not apply. 

Rivkin and Brown propose federal legislation under which American authors sued for defamation in a foreign court would have a cause of action here for damages.  Rivkin and Brown would base the cause of action on "whether the [foreign] plaintiffs are seeking to punish speech protected under the First Amendment."  Finally, Rivkin and Brown argue that the law "should give courts the authority to impose damages that amount to double any foreign judgment, plus court costs and attorneys' fees (in both proceedings) for good measure," plus additional penalties for "[h]abitual libel tourists."


January 13, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2009

"FDA Is Lax on Oversight During Trials, Inquiry Finds"

That's the title of a Gardiner Harris article in today's NY Times.  The opening:

The Food and Drug Administration does almost nothing to police the financial conflicts of doctors who conduct clinical trials of drugs and medical devices in human subjects, government investigators are reporting.

Moreover, the investigators say, agency officials told them that trying to protect patients from such conflicts was not worth the effort.


(Oh, as usual: I've done some consulting work for pharma companies, though it's been quite a while now.)

January 12, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

More on Prisoner Fowl Case

Bill Marler is unimpressed by the case, which I noted last week and which went to trial later in the week.

Marler's post, though, doesn't really identify anything particularly weak about the case.  Indeed, other than the first paragraph, it is a verbatim copy of the Burlington Free Press story to which it links (neither block quoted nor in quotes) (now fixed).  The introductory paragraph just says the story made him cringe, but doesn't say why.

In any event, the story gives a little more detail than we had before:

Two of the three plaintiffs did not in fact ingest the food, which is significant but not dispositive; they can still at least theoretically recover for emotional distress from witnessing the allegedly defective food.  The third testified that he did eat it.  The prisoners brought what they alleged was the chicken, but it wasn't admitted due to chain of custody issues.  Again, that's a problem for their case but doesn't end it.

The case was tried in a bench trial; the judge (who dismissed the prisoners' claims for punitive damages) said he would issue a written ruling.

A later addition: By the way, I don't necessarily think it's a particularly strong case; much will depend on credibility, especially with the physical evidence excluded.  Given the plaintiffs' status as either current or former prisoners, that may be tough.  But this seems to be a different beast than the stereotypical prisoner litigation, and not self-evidently a sign of all that is wrong with the tort system.

(h/t Overlawyered)


January 12, 2009 in Products Liability | Permalink | Comments (4) | TrackBack (0)