TortsProf Blog

Toyota Sued Over Alleged "Sudden Acceleration" Problem

Two L.A. residents have sued Toyota Motor Corp., alleging some Toyota and Lexus products manufactured since 2001 have been made with defective components causing sudden, unexpected acceleration.  They are seeking class-action status.  Toyota has focused on floor mats as the cause of the problem.  However, last week the National Highway Traffic Safety Administration (NHTSA) criticized Toyota for releasing misleading information about the floor-mat investigation.  The Orange County Register has the story about the suit and the NHTSA statement.

--CJR

Court Dismisses Consumer Fraud Claims Against Sears

The Northern District of Illinois has dismissed with prejudice consumer fraud claims in a putative class action against Sears based on an alleged design defect that prevented adequate water drainage and proper self-cleaning.   The court held that plaintiffs' consolidated complaint failed to meet Rule 9(b)'s heightened pleading standards.   Mass Tort Defensehas more (including a copy of the decision).

- SBS

Judge Requests Mass Tort Status for New Jersey Birth Control Suits

New Jersey Judge Donald Volkert Jr. has requested mass tort status for the products liability suits involving the birth control pills Yaz, Yasmin and Ocella.  In his request to the Administrative Director of the Courts, Judge Volkert noted the large number of these cases already pending in NJ state courts, as well as the consolidation of pending federal suits into a federal MDL in Illinois.   The NJ Law Journal (via law.com) has more. 

- SBS

South Carolina Settles Zyprexa Off-Label Marketing Case for $45 Million

Sometimes it is better to wait on the sidelines... South Carolina did not participate in the collective suit by 32 states against Pfizer for its off-label marketing of the anti-psychotic drug, Zyprexa.   If South Carolina has joined that suit, it would have received around $4.5 million.   Instead, it brought its own lawsuit and now reports a $45 million settlement with Pfizer.  The Post and Courier has more. 

As of September 30th, Legal Newsline reportedthree additional Zyprexa cases remained pending:  Mississippi before Judge Weinstein; Arkansas and Pennsylvania in state court. 

- SBS

Zicam MDL Centralized in Arizona

Pursuant to an order issued last Friday, nine pending Zicam suits have been consolidated for pre-trial proceedings before U.S. District Judge Frederick J. Martone of the U.S. District Court for the District of Arizona.  The consolidated cases involve claims that Zicam caused users to lose their sense of smell or taste.  About Lawsuits has more.

- SBS

Paxil Lawsuit Began Yesterday in Philadelphia

The first Paxil birth defect lawsuit against GlaxoSmithKline was scheduled to being yesterday in Philadelphia.  Bloomberg and About Lawsuits have stories on the suit.

However, I have not found any stories confirming that the trial did, in fact, begin yesterday, and GSK has settled other Paxil-related cases.  This trial is the first of several Paxil birth defect suits scheduled in the Philadelphia Court of Common Pleas for this fall. 

UPDATE:   From the Bloomberg link in the comments, it appears that jury selection did take place yesterday in Philadelphia, and opening arguments will be held today. 

- SBS

First Fosamax Trial Ends In Mistrial

The New York Times reports that, on Friday, a federal judge in New York declared a mistrial in the first Fosamax trial to reach a jury. A copy of the plaintiff's motion for mistrial(pdf) is also available from the NYT.

- SBS

Class Action Suit Filed Against Applebee's For Allegedly Misleading Nutrition Values

The Lexington-Herald reports that two Kentucky women have filed a class action suit against Applebee's for fraud based on allegedly false nutrition values on its menus.  Similar class actions are already pending in Ohio, Illinois and Kansas.

- SBS

Fast Track for Chinese Drywall Cases

The Daily Business Review (via law.com) reports that U.S. District Judge Eldon E. Fallon (New Orleans) will select five of the nearly 600 Chinese drywall cases for bellwether trials, possibly before the end of the year:

Fallon has ordered each side to select 10 cases to jump start the process of turning over documents and other information. He has said the initial trials most likely will involve claims limited to property damage as opposed to personal injury. 

- SBS

Levaquin Suits Designated as Mass Tort in NJ

New Jersey Law Journal (via law.com)reports that the New Jersey Supreme Court has designated the growing litigation over Levaquin, an antibiotic manufactured by Johnson & Johnson, as a mass tort.   The case has been assigned to Atlantic County Superior Court Judge Carol Higbee.   Judge Higbee has scheduled a case management conference for July 16th.

- SBS

Michigan Class Action Autism Settlement

As the National Law Journal reports, Blue Cross Blue Shield of Michigan has agreed to a $1M settlement to reimburse at least 100 families for the costs of applied behavioral analysis treatment for their autistic children.  

- SBS

Ted Frank's New Blog

Ted Frank of Overlawyered and Point of Law has launched a new blog:  

Center for Class Action Fairness, a project founded by Ted Frank to provide pro bono representation to consumers dissatisfied with court-appointed representatives in class actions, especially with respect to settlement approval.

- SBS

Suit Alleges Collusion Between Plaintiffs' Lawyers, Diocese in Abuse Settlements

The Diocese of Charleston denies the allegations, which were made in a suit filed earlier this year.  The suit was originally filed directly in the South Carolina Supreme Court, which refused to hear it under its original jurisdiction, and so it was refiled last week in trial court.  The suit alleges that the victims' lawyers put their own interests ahead of those of their clients; the victims' lawyers also deny the allegations.

--BC

Plan for 9/11 Dust Cases

New York Law Journal reports that Judge Hellerstein has approved a "road map" for resolving the 9,000 respiratory illness cases in the 9/11 litigation:

A total of 225 of the most severe cases have been selected by two special masters appointed by Southern District of New York Judge Alvin Hellerstein in the litigation brought by more than 9,000 plaintiffs.   Of that group of 225, six cases will soon be selected for what are formally scheduled to be trials but are really a path toward settlement. Two of those sample cases will be selected by New York City, its contractors and other defendants; two more will be selected by attorneys for those who claim injury from the cleanup of toxic materials; and another two will be selected by the judge himself.  Those six cases will then steam forward with full discovery according Hellerstein. By September, they will have been joined in stages by another 24 cases, setting a total of 30 cases on track for the argument of motions beginning in January 2010 and trial readiness by May 2010.

(Via Point of Law).

- SBS

Hess Lawyers Seek $130M+ in Tobacco Case

The AP has details; $100M of the amount sought is punitive damages.  The jury found causation in an earlier phase of the trial, and the since-decertified class action established in Florida that the tobacco companies hid risks of smoking.

--BC

Updated: First Post-Engle Trial Begins

A few years ago, the Florida Supreme Court threw out a $145 billion class verdict against various members of the tobacco industry.  Now, as Sheila noted in last week's roundup, the first Florida trial post-Engle has begun; Bloomberg has a somewhat more detailed piece on the trial's start.  In the trial, the plaintiffs do get to take advantage of the preclusive effect of the class finding that cigarettes are addictive and cause cancer. 

The trial is in three parts, with the first focusing on liability; the second (if needed) on compensatory damages and the availability of punitive damages; and the third (again if needed) on the amount of punitive damages.

Update: In case you're particularly interested in the case, you can watch it live (for a charge) at CourtroomView.com.

--BC

"Son of Engle" Starts Soon

The first of 8,000 individual tobacco cases that resulted from the decertification of the Engle class will start soon.  They were to start today, but flooding in the Broward County Courthouse delayed the trial.

The plaintiffs in these cases will have the benefit of a number of factual findings in the initial class action:

The Florida high court ruled that former class members could file individual claims against the tobacco companies without having to prove what was already established in the class action: that cigarette smoking is dangerous, that tobacco companies knew that smoking was dangerous, and that tobacco companies knowingly misled the public about the dangers of smoking.

(AmLaw Daily)

Point of Law previewed the case last week.

--BC

Judge Overrules NYC's Objections to Use of "Severity Chart" in 9/11 Respiratory Cases

At a status conference yesterday, U.S. District Judge Alvin Hellerstein rejected objections by NYC to the use of a "severity chart" in the 9/11 respiratory illness cases.   As reported by the New York Law Journal (via law.com), Special Masters James A. Henderson (Cornell) and Aaron D. Twerski (Brooklyn) prepared the chart to provide "what they term a 'snapshot' of the most serious injuries and diseases."   

Hellerstein said he hoped the severity chart would help him establish priorities and find a way forward in litigation that threatens to extend for years. The chart would be the first step toward unearthing "bellwether" cases that could be tried or used as the basis for settlement talks.

...

The judge defended his method of measuring the severity of claimed illness while conceding the chart does not measure causation, including whether the dust at the World Trade Center site was responsible or whether other factors, such as smoking, played a role.

Causation and other issues, he said, would be the subject of the next phase of the massive litigation -- the building of a database that could bring some clarity and allow the court to group the cases into logical categories. 

- SBS

 

Mercury-In-Tuna Class Action Gets Green Light

The Legal Intelligencer (via law.com) reports that the Third Circuit has reversed the dismissal of a class action against the manufacturer of Chicken-of-the-Sea brand tuna.  The suit alleges that the company failed to warn consumers that excessive tuna consumption could lead to mercury poisoning. 

The unanimous three-judge panel found that a lower court improperly dismissed the suit on the grounds that it was pre-empted by U.S. Food & Drug Administration regulations.

"The FDA has promulgated no regulation concerning the risk posed by mercury in fish or warnings for that risk, has adopted no rule precluding states from imposing a duty to warn, and has taken no action establishing mercury warnings as misbranding under federal law or as contrary to federal law in any other respect," Senior U.S. Circuit Judge Walter K. Stapleton wrote in Fellner v. Tri-Union Seafoods. 

A copy of the opinion is available here. 

- SBS

 

Personal Injury Roundup No. 2 (8/8/2008)

We hope to have a "Roundup" category in the near future.  In the meantime, however, you can find previous editions of the Roundup by scrolling under the Current Affairs category (in the Topical Archive off to the lower right).

Now on to the week in torts: 

Reform, Legislation, Policy

• Bills to overturn the Supreme Court's preemption decision in Riegel v. Medtronic have been introduced in both the House and Senate.  [TortsProf, Point of Law, Drug&Device]
• FDA to advertise a fake blood pressure drug in order to study whether the visuals divert consumers from the warnings.  [Pharmalot]
• NY Assembly Speaker makes personal loans to Counsel Financial, a company that finances plaintiffs' contingency fee litigation.  [NY Times]
• State AGs, lawyers and lobbyists all attend Conference of Western Attorneys General.  [Legal Newsline]
• Senate bill would create "Health Care Comparative Effectiveness Research Institute" to review clinical research on drugs, devices and surgical procedures. [Pharmalot]
• FDA announces new conflict-of-interest rules for advisory committees.  [FDA, SanFran Chronicle]
• Debate on medical malpractice.  [Overlawyered]

New Lawsuits

• Finally, a lawsuit in the salmonella outbreak [WSJ Law Blog].
• Class action against Ford over not-so-limited edition Mustang.   [Reuters]
• Another mortgage meltdown suit:  Connecticut sues Countrywide, alleging company violated state consumer protection laws by misleading borrowers to take on loans that they could not afford.  CT joins California, Illinois, Florida and the City of San Diego in pursuing litigation against the financial lender.  [Newsday/AP]
• Beat up because he's a Red Sox fan; suing the Yankees [MassLive.com].
• Second amended complaint in AutoAdmit lawsuit identifies one defendant.  [ABA Journal,  WSJ Law Blog, Overlawyered]

Discovery

• Medblogs give outsiders chance to eavesdrop on break-room conversations and learn insiders thoughts on clinical studies.  [LA Times, GruntDoc]

Trials, Settlements & Other Ends

• Judge tosses Don King's libel suit against ESPN.  [American Lawyer via Law.com]
• 8 year old skier sued for collision with adult settles suit.  [Overlawyered]
• Food manufacturers settle suit by the CA AG concerning carcinogen levels in potato products.   [TortsProf]. 
• Trials galore, free to watch online [The Mac Lawyer].
• Mapractice suit against white collar defense lawyer Michele Roberts dismissed with prejudice. [BLT, Legal Times/law.com]
• Study finds settlement nets more cash than trial. [NY Times]

Appeals

• Second Circuit certifies strict liability question on "when a seller of used machinery may be deemed a regular seller" to New York Court of Appeals.  [Court's opinion (pdf), NY Law Journal/law.com]
• Fourth Circuit rejects defamation claim against Air American radio host. [AmLawyer/Law.com]
• In a case of first impression, Seventh Circuit affirms removal of 144 plaintiff Burlington Northern wood processing case to federal court under CAFA's provision for "mass actions."   [Court's opinion (pdf), Business Insurance]
• Eighth Circuit affirms dismissal of switched-at-birth suit under Federal Tort Claims Act on SOL grounds.  [OnPoint]
• Ninth Circuit considering meaning of "interception" in civil e-mail hacking lawsuit. [WaPo]
• Federal Circuit hears oral argument in Bikini Atoll nuclear case.  [WSJ Law Blog]

Damages

• House passes bill authorizing unlimited punitive damages in pay discrimination cases.  [Cal Punitive Damages]

Miscellaneous

• Bryan Cave starts FDA practice group.  [BLT]

Goofy Stuff

• Okay, this has nothing to do with torts or personal injury, but I just love those guys over at JibJab. 

Shameless Self-Promotion (favorite posts of this week)

• Bill: Q: What'd you do today, Daddy?  A: Um, dug around domain registrations and corporate filings.  Good times!
• Sheila: Animal Law Conversation at Slippery Slope.

Thanks

• For sending us stuff: Eric Turkewitz and Richard Wright.

If you enjoy the Roundup, please send us suggested links; our e-mail addresses are to the left.

- SBS