TortsProf Blog

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

Personal Injury Roundup No. 1 (8/1/2008)

Welcome to the first Personal Injury Roundup (and, like Eric, I've no idea whether it should be "round up," "round-up", or "roundup," but let's go with "roundup") on TortsProf.  We hope to maintain the quality of his year doing it and that of Brooks.  As always, but especially for this, we'd love suggested links; e-mail addresses are off to the left.

It's getting to the end of summer, with all of us scrambling to finish various pieces, but it's still an interesting week in TortLand.

Reform, Legislation, Policy

• Public Citizen criticizes the pro-arbitration analysis performed in recent Chamber studies.  [Public Citizen].
• Eric Turkewitz's op-ed published in regional NY paper; Ted Frank starts a dialogue on the statistics used within; commenters include Turkewitz and people from Public Citizen, originator of the stat in question [NY PI Law Blog, Overlawyered].
• Reforms in New Zealand [SSRN].
• Congress sends president bill banning lead, etc., in toys [AP, see also this week on TortsProf, and two-plus years ago on TortsProf].

Discovery

• In a civil suit, what would have been said about this case without video?  [Simple Justice]
• Six Flags discovery muddles along; 77 deps and at least 18 more months until trial on an accident that happened over a year ago [TortsProf].
• Bad documents from Zyprexa production in Alaska suggest avoidance of diabetes talk by reps [WSJ Health Blog].

Experts & Science

• Ongoing discussion of the "pharma-free expert list" prepared for journalists; most focuses on the import, or not, of it including some who have been paid litigation experts for plaintiffs [TortsProf, Beck & Herrmann, Tort Deform, Pharmalot, and HealthNewsReview.org (the list is there)].

Trials & Settlements

• An update on the Kivalina global warming litigation:  Defendants have moved to dismiss arguing no cognizable tort.  Hearing is scheduled for Dec. 9th. [Point of Law]. 
• Libya & U.S. are close to a settlement relating to 1980s terrorism [WSJ Law Blog].
• Mirapex/compulsive gambling bellwether trials start and one ends with a plaintiff's verdict [WSJ Law Blog; Pharmalot (notes $8.2 million verdict, evidently including punitives).

Appeals

• $16 million verdict against Allstate upheld; could have settled the case for $50K limits [KansasCity.com].
• ScotusBlog discusses and links to Sharkey's Riegel piece and notes Levine's argument date (Nov. 3) [ScotusBlog].

Damages

• The Tennessee Supreme Court upheld a $13 million punitive damages award against Chrysler in a suit claiming that a collapsing minivan seat caused the death of a eight month old baby.  [Point of Law, Overlawyered, ABA Journal].   Chrysler plans to appeal to the U.S. Supreme Court, with Ted Boutrous of Gibson Dunn at the helm.  [AmLaw Daily].

Goofy Stuff

• Real earthquake interrupts fake judge [YouTube].
• Ben & Jerry's marketing people are pretty sure the lawyers wouldn't like that video [Turkewitz, and read the URL, Ted].
• How I ended up in a chicken costume [Spare the Rock, Spoil the Child].

Shameless Self-Promotion (favorite posts of this week)

• Bill's: Okay, it's before this week, but hey, it's the first time we've done the round-up: And with that, a surgeon's insurer's head explodes.
• Sheila's: No Punitive Damages for NY Smokers.

Thanks

For sending us stuff: Eric Turkewitz, Brooks Schuelke, and anyone else who did.

Hey, that was fun.  See you next week.

--BC

Two New Class Actions Based on Restaurant Menus

The National Law Journal (via law.com) reports on two new class actions filed against several nationwide restaurant chains alleging that their menus misrepresent the nutritional content of various items:

The lawsuits also allege that much of the menus' nutrition information is inaccurate and that independent laboratory analysis shows that the fat content for some food items is double or triple the amount listed, for example.

Given the inherent difficulty of tying any one menu selection to weight gain, plaintiffs have chosen to bring consumer-fraud claims.  The suit filed against Applebee's in the Central District of California brings three state statutory claims:  the Consumer Legal Remedies Act, the Unfair Competition Law, and the False Advertising Statute.  The suit filed against Chili's Grill & Bar, On the Border Mexican Grill & Cantina, and Romano's Macaroni Grill in the Northern District of Texas also asserts three consumer fraud claims:  common law breach of contract, unjust enrichment, deceptive trade practices. 

- SBS

Does Fido Have to Prove Reliance?

According to the Daily Business Review (via law.com), a new type of class action has been filed against various pet food manufacturers:  false advertising claims.  The suit filed in federal court in Miami alleges that pet manufacturers falsely advertise when they use words such as "complete and balanced," "veterinarian recommended" and "natural" in advertising.

(Via Chamblee Burch at MassTorts).

- SBS

Kia Liable for $6M for Brake Defects

PennLive (via AP) reports that a New Jersey jury has found Kia liable for a defective brake system in its 1995 to 2001 Kia Sephia, and has awarded $6 million to a class of New Jersey purchasers. (Details from this press release by the plaintiffs' law firm).   Under the verdict, each car owner gets $750.  Kia has stated that it will appeal.

- SBS

Sebok on Second Circuit's Decertification of "Lights" Class Action

In this week's Writ column, Tony Sebok discusses the Second Circuit's recent decision in McLaughlin v. American Tobacco, which reversed Judge Weinstein's certification of the "light cigarettes" class action.    The plaintiff class were individuals who had smoked "light" cigarettes.   Plaintiffs alleged that the tobacco industry has known for years that "light" cigarettes are not safer than regular cigarettes.  Thus, plaintiffs brought (essentially) a consumer fraud claim against the tobacco companies because "the seller promised one thing (a safer cigarette) and intentionally delivered something else (a cigarette that was not, in fact, safer)."   Judge Weinstein originally had certified the class action back in 2006.   Unsurprisingly, the Second Circuit has now reversed.   

In his column, Sebok analyzes the Second Circuit's decision, and offers his predictions as to the decision's effect on consumer fraud class actions generally. I previously have written on the issue of reliance in consumer fraud class actions: The Consumer Fraud Class Action:  Reining in Abuse by Requiring Plaintiffs to Allege Reliance As An Essential Element, 43 HARV. J. LEGIS. 1 (2006).  In this article, I argue that requiring reliance for the resolution of private suits creates the correct balance of individual justice and deterrence. 

- SBS

Neurontin Class Action Against Pfizer Includes Generic Purchasers

As the Philadelphia Legal Intelligencer (via law.com) reports, Philadelphia Common Pleas Judge Mark I. Bernstein has held that Pfizer can be held liable for off-label marketing of the generic version of its epilepsy drug, Neurontin:

The plaintiffs in the class action allege that the drug company defendants conducted a campaign to promote the prescription of its Neurontin drug and its generic equivalent, gabapentin, for a number of medical uses not approved by the FDA, according to court papers.   

Philadelphia Common Pleas Judge Mark I. Bernstein let stand the claims of negligent misrepresentation, negligence and intentional misrepresentation in Clark v. Pfizer Inc. regarding the generic gabapentin made by third-party drug manufacturers.

Bernstein said that the legal question presented in Pfizer's and Warner-Lambert's motion for partial summary judgment was whether a drug company, which "negligently or intentionally perpetrates a fraud upon the medical community" by the off-label marketing of its name-brand drug, can be held responsible for money paid to other drug companies that make the generic equivalent of the name-brand drug.   Assuming that the plaintiffs can prove their allegations at trial, "under Pennsylvania law, a defendant may be liable for misrepresentation to foreseeable plaintiffs even without any direct relations between the parties," Bernstein said in his March 14 opinion.    It was foreseeable that the marketing of Neurontin for off-label use would increase the demand for the generic version of the drug, Bernstein said.

Under the judge's order, the class action against Pfizer will proceed with purchasers of both the brand-name Neurontin as well as purchasers of the generic gabapentin.

- SBS

Katrina Victims Sue FEMA

Hurricane Katrina victims have added the Federal Emergency Management Agency to their suit against the manufacturers of trailers provided to the victims for emergency housing following the hurricane.   The suit alleges that the trailers contained hazardous fumes that caused the nearly 100 plaintiffs to become ill.  As the Houston Chronicle (via AP) reports,

Many trailer occupants have blamed their illnesses on formaldehyde, a common preservative found in building materials. Formaldehyde can cause respiratory problems and has been classified as a carcinogen by the International Agency for Research on Cancer.

The plaintiffs accuse trailer makers of using shoddy materials and construction methods in a rush to fill FEMA's unprecedented demand for emergency housing after Katrina laid waste to tens of Gulf Coast homes in August 2005.

Recent government tests on hundreds of FEMA trailers and mobile homes in Louisiana and Mississippi found formaldehyde levels that were, on average, about five times higher than what people are exposed to in most modern homes.

Plaintiffs seek certification as a class action. 

- SBS

Important News During Cold Season: Airborne Settles False Advertising Class Action

CNN reports that Airborne, the herbal supplement company, has settled a false advertising class action suit for $23.3 million. 

The Center for Science in the Public Interest, a non-profit advocacy group, said the company will refund money to consumers who bought Airborne's product. It will pay for advertisements in major publications instructing consumers on how to get their money refunded.

"There's no credible evidence that what's in Airborne can prevent colds or protect you from a germy environment," said CSPI Senior nutritionist David Schardt. "Airborne is basically on overpriced, run-of-the-mill vitamin pill that's been cleverly, but deceptively, marketed."

- SBS

44,000 Sign Up for Vioxx Settlement

MSNBC (via AP) reports that 44,000 people have submitted all of the necessary paperwork to participate in the $4.85 billion Vioxx settlement.  85% of eligible claimants had to participate to keep the deal alive.

"We are very pleased with the large number of enrollments we are seeing and are confident that when the enrollments are verified, all 85 percent thresholds will be met and exceeded within the timeframes in the agreement," Ted Mayer, a lawyer for Merck, said in a statement.

- SBS