TortsProf Blog

Autism/Thimerosol Trial Begins

Pharmalot has the details of the test case focusing on whether the mercury-based preservative in vaccines can by itself cause autism. 

In related news (though not part of the same case), if I haven't already pointed you to Eric Turkewitz's ongoing posts (and links to other posts) about the subpoena served on autism blogger Kathleen Seidel, well, head on over there now.

--BC

"Trial Lawyers, Inc." and Asbestos

If you're interested in the "elephantine" asbestos situation, you should review the last week or so of Point of Law's asbestos category.  Recent posts started with the release of the Manhattan Institute's asbestos report and followup discussions, including AAJ's news release in reaction (which PoL notes, pretty accurately, isn't actually a response so much as a criticism of the Manhattan Institute's funding and of the Manhattan Institute's legal issues director).

--BC

"Fire Safe" Cigarettes Questioned

We've had a rash of fires in the area started by carelessly disposed-of cigarettes.  A local TV station notes the contrast with the fact that Massachusetts recently became one of 22 states to require the sale of "fire-safe" cigarettes, and points out the limitations of those cigarettes.

--BC

Fine Against X-Ray Outfit Upheld

So the folks at Provost Umphrey hired MOST Health Services, Inc., to do screening of 161 people for potential silicosis injuries.  The screenings took place at various hotels in Pennsylvania.  Only problem -- oops! -- MOST didn't comply with the state regulations on x-ray screenings, failing to get either Department of Environmental Protection approval or the presence of a licensed health professional at the screenings.  The DEP fined the company $80,500 ($500 per unauthorized screening).  The company appealed, not challenging liability but the amount of the fine, which it contended was excessive.

The Environmental Hearing Board upheld the fine: Download mosthealth.pdf. 

The Board concluded that though it found MOST's behavior to be closer to negligent than reckless (disagreeing with the lower officer), it concluded that the amount of the fine was not excessive.  The majority focused on the fact that the lower officer had already reduced the fine significantly from the default amount ($805,000).

A lively concurrence said that a much higher fine would have been appropriate too ("Before X-raying, Provost Umphry did not inquire of the patients as to their medical history, but it did make sure to have them sign contingent fee agreements respecting occupational exposure litigation."; "MHI is not entitled to a volume discount.").

And a dissent argues, more or less, that it would have been trivial to obtain approval of either DEP or of a physician, and so a much smaller fine would be appropriate.

--BC

Second Circuit Weighs In on NYC Menu-Calorie-Regulation

As noted yesterday, a federal district judge has upheld the NYC regulation requiring chain restaurants to post calorie information.   The United States Court of Appeals for the Second Circuit has now lifted a stay, allowing the law to go into effect.  The city, however, has agreed to delay issuing any fines under the new law until July 18th.   As WNBC reports, yesterday's oral argument on the stay might have foretold at least one Judge's position on the merits:

In arguments earlier Tuesday, [Restaurant Association lawyer Kent] Yalowitz said restaurants believe federal laws pre-empted local efforts to try to regulate how restaurants describe the contents of their food. He said the First Amendment rights of restaurants protected them as well.

Judge Rosemary Pooler noted that cigarette packages contain health warnings. "If we were to adopt your view, no warnings would ever appear on anything," she said.   

- SBS

Would You Like to Supersize?

On April 16th, U.S. District Judge Richard J. Holwell upheld New York City's revised Regulation 81.50, which require restaurants to post calorie information on menus.  As previously reported, Judge Holwell struck down the original regulation last September.  The original regulations only applied to restaurants that already had voluntarily disclosed nutrition information to their customers.  Judge Holwell concluded that the original regs were preempted by the federal Nutrition Labeling and Education Act of 1990 because the NLEA regulated voluntary disclosure of nutrition information by restaurants.   

In his latest opinion, however, Judge Holwell found that the revised regulation "is not preempted by NLEA because that statute explicitly leaves to state and local governments the power to impose mandatory nutrition labeling by restaurants."    Judge Holwell also rejected a First Amendment challenge by the Restaurant Association.  The New York Law Journal (via law.com) has a full report on the decision. 

The new regulations took effect on Monday, April 21st, and only apply to chain restaurants with at least 15 outlets across the country.  WNBC reports that the Health Department will not start fining restaurants until June 1st. 

- SBS

That's Rather More Warnings Than I'm Used to Seeing on Soda Bottles

My daughter went out for sushi the other night with a friend's family (at age 9, she's more adventurous, food-wise, than I was by 25).  She came home with a bottle of Ramune, a Japanese soft drink.  I will try to get a picture of the bottle up later, but for now, check out Wikipedia's.  What's hard to see in photos is that the bottle contains a marble, which is used to seal the bottle (the carbonation holds it in place).  Before drinking, the user pushes the marble into the bottle by way of a supplied plunger; the marble then hangs out in an upper part of the bottle where one challenge is to drink the soda without the marble re-sealing the bottle.  (The bottle has a little notch in the upper part that helps the user with that.)

Anyway, it struck me mostly because of all of the warnings:

WARNING

• DO NOT SWALLOW THE PLUNGER.  Throw it away immediately after opening.
• Adults should open the bottle for small children and supervise drinking.
• Do not try to remove the marble from the bottle to avoid injury. 
• Do not freeze the bottle or store it in direct sunlight.
• Do not consume if the marble is broken, missing, or descended before opening.

I've already written my products exam this term, but there's all sorts of fun possibilities here...

--BC

FDA Traces Tainted Heparin In 11 Countries to China

The New York Times reports that the FDA has identified 12 Chinese companies that supplied contaminated heparin (an anti-coagulant) to 11 countries, including the United States.  In addition, "federal officials said Monday they had discovered a clear link between the contaminant and severe reactions now associated with 81 deaths in the United States."

- SBS

Crocs and Escalators

Crocs (the footwear, not the amphibians) have been in my life a lot lately. My son just got some knockoffs (Croc-offs?), the station we do the kids' music radio show on is doing a fashion makeover contest themed on them, and now Above The Law has a post about the potential danger of the shoes on escalators. The Japanese government has apparently asked for a redesign to reduce the danger, and at least one suit has been filed based on injuries to a three-year-old hurt on escalator.

--BC

The Limitations of Law in Mass Torts

Ed Lazarus has an interesting Writ column discussing the limitations of tort law in remedying wrongdoing, especially mass wrongdoing, framed with the recent decertification of the "light" cigarette class action.

--BC

Plastic Risks

A U.S. government agency agreed yesterday that Bisphenol A (BPA), a compound in polycarbonate plastics, has potential danger.  BPA is used in a gazillion products, including sippy cups and the like.  Of note, a Google search for "BPA lawyer" comes up with a handful of paid results, but none seem to be from the plaintiffs' side -- instead, the top result resolves to FactsOnPlastic.com, a site produced by the American Chemistry Council.

--BC

N.J. Hockey Arena Not Liable for Stray Practice Puck

The New Jersey Law Journal (via law.com) reports on a decision last week by the New Jersey Supreme Court upholding the sports venue "limited duty rule," which applies to objects leaving the field (or ice as the case may be) and entering the stands.   The court held that the limited duty rule applies to pre-game "warm up" activities, but that the arena did not have a separate duty to warn.   

The majority only briefly addressed Lovett's separate argument that Global Spectrum should have provided written warnings to fans about the dangers of flying objects prior to the game's start. He said requiring a warning would create a two-tiered duty of care not contemplated by the New Jersey Baseball Spectator Safety Act of 2006, enacted after the Maisonave ruling. The statute extends the limited duty rule at baseball parks to pre-game activities. 

Justices Virginia Long, Barry Albin and John Wallace Jr. dissented in an opinion written by Long. They said the limited duty rule requires arena owners and operators to warn fans of the potential dangers. "Indeed, it makes no sense to devolve on the arena owner a duty to provide protected seating while keeping patrons in the dark over their right to request it," Long wrote.

And so, if the arena provides screened seating to protect seats ordinarily at risk, there's no liability when say a puck flies off the ice during warm-ups and strikes you.

A copy of the decision is available here.

- SBS 

Titanic Negligence?

It's only tangentially torts-related, but still, this Talking Points Memo post is pretty interesting (and generally apolitical), exploring the alternative theory being pitched for the cause of the Titanic's sinking.

[T]he authors of What Really Sank the Titanic use a combination of physical evidence obtained from the wreckage (48 recovered rivets) and archival evidence from the archives of the ship's builder, Harland and Wolff, which is still in business, to make the case that the builders were building on such a vast scale and under so much time pressure that they simply couldn't come up with enough high quality rivets or riveters. So they cut corners. The result of which was that the ship's plates split open much more quickly than they might have with better materials. Better construction would have kept the ship afloat long enough for many more passengers and crew to be rescued.

TPM's Marshall notes that the manufacturer denies any fault, and seems surprised that they would be resistant to acknowledging even the possibility of defect in the rivets, observing, "somehow I would have imagined that some sort of emotional or moral statute of limitations had run out."  But of course, unless there's a statute of repose in play, isn't it at least possible that a discovery rule could result in even the legal statute of limitations might not have ended?   On the other hand, the post notes that some of the theory has been around for "a decade," so most likely any limitations period has in fact expired...but an interesting fact pattern, in any event.

(Note: I know next to nothing about admiralty law, assuming it would apply.  Perhaps the LawBoat blog folks can chime in?)

--BC

Upcoming Summer Conference on Preemption

Jim Beck & Mark Herrmann (at Drug & Device Blog) will be co-hosting the American Conference Institute's Drug and Device Preemption Conference from July 14-15, 2008, in Philadelphia.   The conference is followed by a one-day "junk science summit" on expert witness and scientific evidence on July 16th.   

- SBS

Wal-Mart Video Archive Helpful in Products Suit

Consumerist has a post (based on a WSJ piece) about the second life of thirty years of videos made for Wal-Mart.  The company that did the work evidently retained the rights (oops on Wal-Mart) and Wal-Mart declined to pay as much as the company asked.  Now the company is selling access and it's helped at least one plaintiffs' lawyer:

Plaintiffs attorney Diane M. Breneman stumbled across the videos while working on a lawsuit she filed in 2005, on behalf of a 12-year-old boy, against Wal-Mart and the manufacturer of a plastic gasoline can sold in its stores. Her client was injured when he poured gasoline from the container onto a pile of wet wood he had been trying to light, and the can exploded. The lawsuit alleges that the containers are unsafe because they don't contain a device that prevents flames from jumping up the spout and exploding.

Wal-Mart's lawyers have argued in court filings that the retailer couldn't have known that the product "presented any reasonable foreseeable risk...in the normal and expected use."

* * *

Ms. Breneman says Flagler Productions located videos of product presentations to Wal-Mart managers in which executives gave parody testimonials about the same brand of gasoline can. In an apparent coincidence, one manager joked about setting fire to wet wood: "I torched it. Boom! Fired right up." In a separate skit, an employee is seen driving a riding lawn mower into a display of empty gasoline cans. A Wal-Mart executive vice president observing the collision jokes: "A great gas can. It didn't explode." The tapes were made before the lawsuit was filed.

Ms. Breneman argues the footage provides evidence that the retailer could have foreseen the risk that customers would use the gas cans when starting fires. She says she plans to ask the Kansas City, Mo., federal court handling the case to allow the footage to be used as evidence. Wal-Mart's lawyer on the case didn't return calls seeking comment.

--BC

Heparin Toll Estimate Increased

The Washington Post reports that the FDA has increased its estimate of fatalities from contaminated heparin to 62.

The posting said that the reports of allergic reactions or low blood pressure after the administration of heparin do not mean the drug was the cause of death "in all cases." But the agency provided comparison statistics showing that in 2006, three people were reported to have died following allergic reactions to heparin.

In addition, FDA's month-by-month count of adverse-event reports involving heparin showed that 47 of the 62 deaths associated with allergic reactions occurred from November through February.

The FDA's posting is on its website.  A ways back, Eric Turkewitz had an interesting post on how Baxter could potentially be liable even for counterfeit heparin.

--BC

Third Circuit Preemption Win for Manufacturers of Paxil & Zoloft

The Legal Intelligencer (via law.com) reports on a decision filed yesterday by the United States Court of Appeals for the Third Circuit holding that claims that the manufacturers of Paxil and Zoloft failed to warn of a risk of suicide were preempted.  The court issued a narrow decision based on the fact that the FDA expressly had refused to order the very suicide warnings that plaintiffs argued were necessary: 

"We do not decide whether the FDA's mere approval of drug labeling is sufficient to pre-empt state-law claims alleging that the labeling failed to warn of a given danger," Sloviter wrote. Likewise, Sloviter said, the court would not address "whether FDA approval of drug labeling constitutes minimum standards in the absence of the FDA's express rejection of a specific warning."

On the narrow question, Sloviter found that since both plaintiffs were suing over warnings that the FDA had explicitly refused to order, their failure-to-warn claims "conflict with, and are therefore pre-empted by, the FDA's regulatory actions."

Beck & Herrmann have a break-down of the decision's "high points."  Judge Thomas L. Ambro dissented from the majority opinion.

- SBS

Rendigs Products Liability Moot Court Competition

I just returned with three of our students from the Rendigs Products Liability Moot Court Competition in Cincinnati, Ohio. The competition, run by the University of Cincinnati College of Law, is now over twenty years old and is a terrific event. Congratulations to the winning team (from South Texas) and to all competitors, especially the WNEC team, which did excellent work throughout. Torts profs looking for a moot court competition to participate in should consider this one seriously; it's very well-run.

The problem [PDF] this year is a good timely one, based on the diacetyl in microwave popcorn, raising compelling questions of duty, foreseeability, breach, and (in the secondary issue) personal jurisdiction.

--BC

Pet Food Cases Settling

Menu Foods is reportedly settling the hundreds of suits filed against it after its tainted pet food injured or killed numerous pets. A TV report I saw this morning reported that the settlement was in the tens of millions of dollars.

--BC

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

PA Judge: No Preemption in Paxil Labeling Suit

Judge Allan L. Tereshko, the coordinating judge of Philadelphia Common Pleas Court's Complex Litigation Program, denied GlaxoSmithKline's preemption-based motion for summary judgment on Tuesday.  The court held that federal law does not preempt state law claims that the pharmaceutical company breached its duty to warn users of Paxil about the alleged association between the drug and suicidality.  This was the first of 60 cases pending in the Philadelphia Paxil program.  Nationwide, courts are split over the preemption defense in Paxil cases.  Law.com has the details.

--CJR   

NEJM on Device Safety

Launching from the problems with Medtronic's implantable defibrillators, William Maisel (Beth Israel Deaconess Medical Center, Boston) advocates for increased consumer protection provisions in the medical device context.

--BC

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

   

Well, Thanks for All That Guidance, Supremes -- Kent Decided

Here [PDF] is the Supreme Court opinion affirming the Second Circuit in Warner-Lambert v. Kent.

Take a moment to digest it.

And that's all you'll need. It's per curiam.

For now, anyway, then, Buckman is limited. And preemption is that much more complicated. And the Drug & Device guys were thisclose to getting it right.

--BC

Another Kentucky Kingdom Update

I've been following the case related to Katie Lassiter, the young girl whose feet were severed while on the "Superman: Tower of Power" drop ride manufactured by Intamin for Six Flags Kentucky Kingdom. Local news reports that the ride is being dismantled and that the victim had a bone removed a few days ago.

In related news, the Kentucky Commissioner of Agriculture recently called for more inspectors for that state's amusement rides, saying the state was lucky that there had been nothing worse than serious injuries on its rides.

--BC

Kent Argument

Ted Frank was there and summarizes.

--BC

Two Preemption Podcasts

The USSC's decision in Riegel v. Medtronic has inspired a lot of discussion.  The Federalist Society posted a podcast of Richard Epstein's comments on Riegel here.  The American Enterprise Institute hosted a conference on Thursday featuring Michael Greve (AEI), Cathy Sharkey (NYU), Daniel Troy (Sidley Austin), and Brian Wolfman (Public Citizen).  Ted Frank served as moderator.  The podcast is here.  (Via Olson/Point of Law).

--CJR

Updated: After Riegel

The Drug & Device Law Blog has a looking-forward post about what happens post-Riegel -- and, by implication, what happens after the rest of the preemption trilogy if, as seems at least possible, much state tort litigation related to FDA-approved drugs is preempted.

The question, as they accurately note, comes down to whether the mostly-regulatory, mostly-not-litigation approach to pharma safety can work. (Or at least whether it can work as well as the litigation-intensive system existing now.) I expect many (including me) would feel much more comfortable about a broad preemption in a world where the FDA didn't confuse factories with similar names and the like. Indeed, that's an example the D&D folks mention as "not cutting it." But that's not the world we have. Perhaps in light of the new world of preemption, FDA funding will get increased and expectations raised. We'll see.

If it does turn out to be a catastrophe, of course, Congress has the power to explicitly reject preemption, express, implied, and otherwise.

The post is worth a read. I think they've accurately captured what their clients need now to do in order to show that preemption is not a mistake.

Update: Eric Turkewitz discusses the post and links to more.

--BC

(As usual, I have done consulting to pharma clients. I realize that it's actually been a while since I've had any of that work, but I still note it in case it's of interest.)

Beef: It's What's For, Er, Being Recalled

You have presumably already read about the recall of 143 million pounds of beef, the largest recall of beef in history. The USDA said (in the same story linked to) that it believes that most of the beef has already been eaten. For more, you can keep an eye on our blog-neighbors at the Food Law Prof Blog, the (plaintiffs-side) Food Poisoning Lawyer Blog, or, of course, the (also plaintiffs-side) Marler Blog.

The video that triggered much of the attention:

--BC

CPSC Overhaul Agreement In Sight

So reports the Washington Post. The compromise measure would more than double the beleaguered agency's budget and add some additional powers. Consumers' groups appear generally supportive (with a significant dissent from Public Citizen), while the National Association of Manufacturers was critical, contending that the new bill would not improve safety but instead merely increase litigation.

--BC

A Sizzler Lawsuit in Arkansas

I've posted a number of times about incidents and litigation related to the Sizzler, a carnival ride built by Wisdom Industries.

On Easter Sunday of last year, a seven-year-old boy was thrown from a Sizzler in Arkansas and died. His parents and estate have filed suit, with the amended complaint alleging negligence by the ride operators and manufacturer. The focus appears to be on the ride lacking seatbelts -- it has only a lap bar, which does not do much to prevent riders (especially young and small riders) from getting out of position.

The defendants deny liability and assert, among other defenses, comparative fault and assumption of risk, so far as I can tell from the article.

--BC

Record-Setting $28 Billion Punitive Damages Award Reversed Under Williams

The California Court of Appeals recently issued its decision in Bullock v. Philip Morris USA, where the jury originally awarded a land-mark $28 billion (yes - billion with a "B") punitive damages award against Philip Morris.   The trial court reduced the award to $28 million, and the case has gone up and down the California appellate system in light of State Farm and now Williams.

In the latest opinion [pdf], the California Court of Appeals reversed the punitive damages judgment based on the trial court's refusal to give the company's proposed instructions.  The first instruction stated "You are not to impose punishment for harms suffered by persons other than the plaintiff before you."  The second instruction stated "You are not to punish defendant for the impact of its conduct on individuals in other states or other countries."   The court noted that "Philip Morris had no duty to qualify its proposed instruction in order to encompass a rule of law favorable to [plaintiff] concerning the permissible use of evidence of harm caused to others."   The court has ordered a new trial on the amount of punitive damages. 

- SBS

That Didn't Take Long

A couple of weeks ago, I noted some mutterings about Botox fatalities, mostly (if not exclusively) in the non-cosmetic use, where it's used for certain palsies. At the time, there were no AdSense ads, and indeed the Google results for relevant terms were not directed to client recruitment.

Not any more.

After a lot more coverage (including a post at Point of Law that suggests, I think incorrectly*, that it could become a significant mass tort), the ads and well-placed sites have started to pop up. Behold:

Not just paid spots, either, you'll note - Kline & Specter (which I think must have a New Tort Mad-Lib Web Generator, along with Mark & Associates, which has the paid spot) has the top spot in the unpaid results.

--BC

*Why I think it's incorrect, at least for now, to predict Botox as a significant mass tort: when the Bad Thing happens, it's very bad but very rare. I haven't seen any coverage that suggests that there are any lesser-included-Bad-Things to even credibly allege. No doubt some (most? all?) of the people who suffer the worst side effect will bring suit, but it appears to be a very small number. (There was a high-profile suit in 2004 about "life-altering headaches" but that appears to have been a one-off.) It's clearly not impossible for it to turn into a big claim -- it'd be a dream case for many reasons -- but for now, I don't think there's enough to make that prediction.

"WARNING: This Product Warps Space and Time in Its Vicinity."

This list of warnings that are scientifically accurate but perhaps not as alarming as they sound is evidently pretty old, but new to me and quite funny.  My favorites:

HANDLE WITH EXTREME CARE: This Product Contains Minute Electrically Charged Particles Moving at Velocities in Excess of Five Hundred Million Miles Per Hour.

PUBLIC NOTICE AS REQUIRED BY LAW: Any Use of This Product, in Any Manner Whatsoever, Will Increase the Amount of Disorder in the Universe. Although No Liability Is Implied Herein, the Consumer Is Warned That This Process Will Ultimately Lead to the Heat Death of the Universe.

HEALTH WARNING: Care Should Be Taken When Lifting This Product, Since Its Mass, and Thus Its Weight, Is Dependent on Its Velocity Relative to the User.

--BC

Mitsubishi Rollover Trial Starts in Florida

As I previously noted, a former Mitsubishi president was convicted in Japanese criminal court in the aftermath of the discovery of massive and long-standing coverups of safety defects.  That story is continuing in Florid, where a trial started this week over the death of a 25-year-old college student.  His family alleges that the seatbelt in the Mitsubishi SUV had too much slack, resulting in his ejection and death. 

The Post story does not indicate any direct connection between the defects that had been covered up by the company and the seatbelt design, but the plaintiffs' attorney signaled an intent to make such a connection, saying that he believed the death could have been avoided had the company "properly dealt with defects."

--BC

New Warnings for Botox?

That's what Sidney Wolfe (Public Citizen) is asking for after sixteen deaths have been reported -- but none apparently among the people using it for cosmetic purposes.  As a muscle relaxant, it can, as it turns out, be used to treat severe muscle pain in the neck, but the injections come near the esophagus, which, when it's hit with the drug, can cause paralysis and eventual death.

Perhaps because of the fact that it's thus far apparently limited to people in the non-cosmetic use side, I don't see any relevant ads for lawyers.  The risk/benefit discussion would be interesting in any event, but especially so in the cosmetic use side, I would think.

--BC

"Traction Park," "Fracture Park": One Facility, Dozens of Hypotheticals

New Jersey's Action Park was an amusement facility open in various incarnations from 1978 to 1996.  It was, in broad terms, designed to feature relatively extreme attractions with an unusual degree of patron control over their experiences.  That combination resulted in a remarkable number of injuries and fatalities -- and all sorts of ideas for torts hypotheticals.  The location now houses the much less extreme Mountain Creek Waterpark.

Among the injuries noted in various sources in its incarnation as Action Park are (a) an electrocution in a water ride; (b) head injuries (one fatal) and injuries on an alpine slide (where patrons control their speed going down a concrete trough); (c) drownings in the wave pool (nicknamed the "Grave Pool"); (d) various injuries from very fast go-karts (employees allegedly would bypass the speed governor); and (e) a variety of injuries from the park's most notorious ride, a looping waterslide.  Yes, a looping waterslide:

The looping waterslide apparently almost never actually operated, though it was there for years.  There have been various reports of another waterslide designer trying to make one less likely to injure.

If you're looking for examples of Bad Ideas™ combined with potential comparative fault and/or assumption of risk, some sources for you:

• The Wikipedia entry, while including a snippy note about it not complying with editorial guidelines, consolidates a lot of information from other sources.  All reliable?  Perhaps not, but filled with truthiness, and that's enough for exams, no?
  
• Weird NJ's page has some more details, including a scan of a newspaper article in which the park was sued for negligence when a lifeguard apparently hit a patron in the face with a life preserver when trying to toss the man the live preserver.
• The not-terribly-tasteful Domain of Death 3 has additional stories.
• Finally, former employees post entertaining stories at Center of the Action, a blog about their experiences.

And why not?  An apparently-unavoidable-at-the-time ad that might be in the mix in any hypothetical suit:

 

Good times.

--BC

Calorie Counting in New York City

The New York Times reports that New York City once again is going to require restaurants to post calorie content on menu boards.   The Board of Health revised the regulations following a decision last September by U.S. District Judge Richard J. Holwell striking down the original regs.   (In an interesting note given the buzz on preemption these days, Judge Holwell found that the original regs were preempted by the federal Nutrition Labeling and Education Act of 1990). 

Under the revised regs, "any chain that operates at least 15 outlets nationwide would have to display calorie content on their menu boards, menus or food tags — essentially wherever the restaurant lists the information that customers use to make their choices."   The regulations are scheduled to take effect March 31st, but the New York State Restaurant Association is considering a lawsuit.

- SBS

Minnesota Bridge Victims Take Steps To Sue

WCCO in Minneapolis (via AP) reports that at least 73 victims from last summer's bridge collapse have filed notices of potential legal claims with the State.  As Bill noted in October, the State is considering a victims' compensation fund:

Bridge victims don't stand to get much from the state because of a law limiting the government's liability to $1 million per incident. But lawmakers are considering a compensation fund that would offer more to those who gave up the right to sue the state. A joint House-Senate panel takes up the proposal [today].

- SBS

USSC to Offer Guidance on Preemption

Yesterday, the Court granted cert in two products liability preemption cases.  In Wyeth v. Levine, No. 06-1249, the Court will determine whether the FDA's labeling requirements for prescription drugs preempt state law or merely provide minimal protections that states are at liberty to exceed.  In Itria Group v. Good, No. 07-562, the Court will determine whether statements authorized by the FTC preempt state law consumer fraud class actions in the context of so-called "low tar" or "light" cigarettes.

The resolution of these cases should go a long way toward clarifying preemption issues.  The Court's decision to hear them has attracted a lot of attention.  For more on the issue, see Point of Law/Frank, Mass Tort Litigation Blog/Lahav, Drug and Device Law, and Products Liability Prof Blog/Steenson.  It appears Cathy Sharkey's paper that I recommended yesterday has increased relevance today.

--CJR

Case Update: Mesman v. Crane Pro Services

The new edition of the David Owen et al. Products Liability casebook uses Mesman v. Crane Pro Services, 409 F.3d 846 (7th Cir. 2005) to discuss negligence in design (using Indiana's statutory products liability provisions).  In case you're using that book (as I am now), the Seventh Circuit, again with Posner writing the opinion, heard it a second time and ruled a couple of weeks ago [PDF].  It has another interesting discussion of the Learned Hand formula, along with some relatively uninteresting jury instruction material -- though even that has a good bit about the interplay of "open and obvious dangers" with "incurred risk."

--BC

Criminal Conviction Over Mitsubishi Defects and Coverup

A former Mitsubishi president was convicted in Japan of professional malpractice relating to a death in a head-on collision and a long-term systematic coverup of defects.

Kawasoe, who became president in 1997, quit in disgrace in 2000 after acknowledging that the automaker had hidden defects for decades, many secretly repaired without recalls, despite reports of dozens of accidents.

The massive cover-up scandal stunned Japan when it surfaced in 2000. The sale of Mitsubishi Motors vehicles plunged, sending the Tokyo-based maker into losses for years.

For decades, Mitsubishi kept a two-tier record of driver complaints, tucking away defect reports in a locker that employees called "H," standing for the Japanese word for "secret."

Responsibilities were not defined and driver safety concerns were forgotten, according to a company report ordered in response to the scandal. When the concealed defects grew massive over the years, everyone was afraid to speak up, it said.

Mitsubishi apologized Wednesday to the family of the driver who died, and the company promised to do better.

--BC

"Drug Approved. Is the Disease Real?"

That's the provocative title of Alex Berenson's article today covering the recent FDA approval of Lyrica's new indication for fibromyalgia.  As the story notes, some researchers are not convinced that fibromyalgia in fact exists -- and suggest that calling it an official disease encourages additional complaints of pain by those diagnosed with it.  Those researchers do not question whether the patients are actually in pain, but whether it can be classified as a separate disease.

The drug in question has some interesting regulatory history that could be relevant to any future litigation:

The F.D.A. reviewers who initially examined Pfizer’s application for Lyrica in 2004 for diabetic nerve pain found those results unimpressive, especially in comparison to Lyrica’s side effects. The reviewers recommended against approving the drug, citing its side effects.

In many patients, Lyrica causes weight gain and edema, or swelling, as well as dizziness and sleepiness. In 12-week trials, 9 percent of patients saw their weight rise more than 7 percent, and the weight gain appeared to continue over time. The potential for weight gain is a special concern because many fibromyalgia patients are already overweight: the average fibromyalgia patient in the 2007 survey reported weighing 180 pounds and standing 5 feet 4 inches.

But senior F.D.A. officials overruled the initial reviewers, noting that severe pain can be incapacitating. “While pregabalin does present a number of concerns related to its potential for toxicity, the overall risk-to-benefit ratio supports the approval of this product,” Dr. Bob Rappaport, the director of the F.D.A. division reviewing the drug, wrote in June 2004.

As of today, there don't appear to be any lawyers advertising via Google's sponsored ads, though there are a number of firms who seem to be looking for clients in connection with suicidality.

--BC

D.C. Automatic Weapons Lawsuit Shot Down

The BLT has the details on the suit.  Today, such a suit would clearly be preempted by federal law (which preempts almost all suits for injuries caused by firearms).  The story notes that the city might have been able to assert facts that would fit within the exception for complicity in illegal firearm sales, but it didn't.

It also references an act I never heard of in D.C.,

the D.C. Assault Weapons Manufacturing Strict Liability Act of 1990. Under that law, gunmakers, importers, or distributors of assault weapons or machine guns “shall be held strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death” resulting from discharge of the weapons in the District.

The federal act obviously preempts that local statute.

--BC

Next Year's Toys Might Be Safer

The House a week ago or so passed legislation to allow only trace amounts of lead in toys, increase inspections, and increase CPSC funding (this is the bill as to which the amusement ride amendment was rejected).  CPSC chair Nancy Nord, who had been a little ambivalent in the past, praised the legislation.

--BC

Six Flags Case Shaping Up

Depositions have evidently begun in the case against Six Flags for the injuries caused on its Superman: Tower of Power ride at Six Flags Kentucky Kingdom (in which a girl's feet were severed).  The factual theory of defect appears to be shaping up:

An amusement park ride where a girl's legs were severed last summer was not designed to stop automatically in case a cable broke, the park's maintenance chief said in a deposition.
John Schmidt, ride maintenance manager for Six Flags Kentucky Kingdom, said the Superman Tower of Power should have been designed differently.

"Do you think that this ride ought to shut down when a cable breaks?" attorney Larry Franklin asked Schmidt in the Nov. 30 deposition.

"Yes," Schmidt answered.

The ride -- manufactured by Intamin -- is fairly common, and I doubt any of them have such a feature.  (I actually doubt that similar rides do either.)

--BC

Bizarre Warning Winners

Last week, Michigan Lawsuit Abuse Watch announced the winners of its 11th annual wacky warning contest.  The ABA Journal coverage is here. 

Thanks to Alberto Bernabe of The John Marshall Law School for the tip.

--CJR