Mass Tort Litigation Blog

Heart Device Warning May Change

Article in today's Los Angeles Times -- Heart Device Warning May Change, by the Associated Press:

    The Food and Drug Administration is considering not using the word "recall" to warn
    patients and doctors about defective pacemakers and defibrillators at the request of
    a physician group struggling to deal with a loss of public confidence in the safety of
    implantable heart devices.

    FDA officials said they were conducting focus groups to see whether the currently used
    "recall" term was causing undue alarm when used to refer to heart devices the agency
    had decided might be faulty.

Jury rejects man's claim Vioxx caused heart attack

Article in today's Times-Picayune -- Jury rejects man's claim Vioxx caused heart attack, by Susan Finch:

    A federal court jury Tuesday handed New Jersey pharmaceutical giant Merck & Co. Inc.
    a victory in the latest of more than 16,000 lawsuits alleging the company failed to give
    adequate warning to doctors that Vioxx, a popular painkiller it took off the market in
    2004, posed a heart attack risk.

    After a two-week trial and just over two hours of deliberating, jurors rejected the claim
    of Kentucky resident Robert Garry Smith, 57, that his heart attack in February 2003 was
    caused by Vioxx, which he'd taken for about four months for arthritis pain.

The NYT's Melanie Warner Discussing Judge Weinstein Tobacco Class Action Certification

The New York Times' Melanie Warner discussed Judge Weinstein's decision certifying a nationwide lights cigarette class action on the Backstory Program.

Judge Weinstein's Opinion Certifying a Nationwide Lights Class Action

Findlaw has posted Judge Weinstein's 540-page opinion certifying a nationwide lights class action against the tobacco industry, Schwab v. Philip Morris USA, Inc., No. 04-CV-1945 (E.D.N.Y.  Sept. 25, 2006).

Tobacco Makers Lose Key Ruling on Latest Suits

Article in today's New York times -- Tobacco Makers Lose Key Ruling on Latest Suits, by David Cay Johnston and Melanie Warner:

    In a legal blow to the tobacco industry, a federal judge in Brooklyn ruled yesterday
    that people who smoked light cigarettes that were often promoted as a safer alternative
    to regular cigarettes can press their fraud claim as a class-action suit.

    Judge Jack B. Weinstein of Federal District Court in Brooklyn found “substantial evidence”
    that the manufacturers knew that light cigarettes were at least as dangerous as regular
    cigarettes.

    The decision, coming at a time when the tobacco industry felt it was on a legal winning
    streak, raises the possibility that so-called lights cases will become a major threat to the    
    companies and expose them to potentially significant damages.

Strict Liability and the Liberal Justice Theory of Torts

Professor Alan Calnan of Southwestern Law School has posted an interesting working paper, Strict Liability and the Liberal Justice Theory of Torts, on SSRN.  Here is the abstract:

     Ask a group of tort scholars to explain the relationship between fault
    and strict liability and the responses are likely to be sharply split. An
    economist might reply that strict liability - assigned on the basis of
    efficiency - should be the rule and fault, if it is to apply at all, but a
    reluctant and occasional exception. A moralist, however, would likely
    give the opposite opinion - that fault, defined as deontological culpability,
    should be the rule and strict liability the exception.

    Ironically, both economists and moralists often base their views on liberal
    principles. Economists rely on the political dimension of liberalism, arguing
    that government generally should not intervene in free market transactions,
    ut if it must, it should do so only with clear tort rules that minimize accident
    costs. Not surprisingly, moralists rely on the moral dimension of liberalism,
    contending that tort law should promote private rights and freedoms by creating
    and enforcing personal responsibilities.

    Both views, however, share the same three flaws. Methodologically, they are
    one-dimensional (focusing on either the moral or the political, but not both)
    and unilateral (seeking to either punish or deter injurers while virtually ignoring
    the injured). Substantively, they are strangely illiberal (promoting either social
    welfare or a particular conception of the Good).

    In this article, I offer a liberal justice tort theory that avoids these pitfalls. It is
    holistic, encompassing both sides of tort law's dual personality; relational, invoking
    justice concepts that illuminate the bilateral aspects of all torts; and classic, adopting
    a longstanding and mainstream perspective that seeks only to protect and promote
    individual liberty. After recapturing and redefining strict liability, I demonstrate how
    that concept can lay the groundwork for a new metatheory of torts.

    My thesis, in short, is that strict liability is both a moral-political and a substantive-
    procedural concept that must be implemented in a two-step process. The first step
    determines whether the parties' encounter and its effects were consensual. If consent
    exists, the consenter is held strictly liable for her own loss, irrespective of the fault of
    her counterpart. If no consent is found, or if it is not an issue, liberal justice theory
    then implements a scheme of reasonableness, grounded in concepts of strict law and
    equity, to determine the actor's liability. Strict law creates substantive rules that forbid,
    inhibit or sanction certain people, activities or relations that pose the greatest and
    surest threats to freedom and equality. However, even when a person, activity or
    relationship is not covered by a strict substantive rule, equity may episodically impose
    strict procedural requirements on actors who hold an unfair advantage in the trial of
    their actions. Because litigation itself is a threat to the freedom of the loser, the ad
    hoc adjustment of procedural burdens serves to correct an important imbalance
    between the parties and restores them to a state of moral and political equality.

Judge to rule on tobacco class action case

Article on cnn.com -- Judge to rule on tobacco class action case:

    A U.S. judge is expected on Monday to rule on whether to certify as a class action a
    lawsuit that accuses tobacco companies of defrauding smokers into thinking "light"
    cigarettes were safer than regular brands, according to notice sent to lawyers in the
    case.

    U.S. Senior District Judge Jack Weinstein will file his order on pending motions in the
    case known as Schwab v. Phillip Morris USA Inc. by 10 a.m. on September 25, the memo
    said.

Welcome Legal Profession Blog

Welcome to the Legal Profession Blog, edited by Professors Alan Childress and Jeffrey Lipshaw at Tulane University Law School and Professor Michael Frisch at Georgetown Law Center!

The Future of Drug Safety: Promoting and Protecting the Health of the Public

One can read online for free the prepublication copy of The Future of Drug Safety: Promoting and Protecting the Health of the Public, a comprehensive review of FDA safety by the Institute of Medicine.  Acting FDA Commissioner Dr. Andrew Von Eschenbach has also issued a Statement Regarding the Institute of Medicine Future of Drug Safety Report.

Drug Safety Overhaul Is Urged

Article in today's Los Angeles Times -- Drug Safety Overhaul Is Urged, by Ricardo Alonso-Zaldivar and Denise Gellene:

    The government's drug safety system is seriously out of balance, devoting too much
    attention to approving new medications and not enough follow-up to uncovering risky
    side effects, a blue-ribbon scientific panel concluded in a major report released Friday.

    Convened at the request of the Food and Drug Administration after a popular painkiller
    was linked to heart attacks, the experts in medicine, pharmacology, law and other fields
    issued a sweeping call for reform. Its 25 recommendations include establishing a fixed
    term for the FDA commissioner, restricting ubiquitous drug commercials and placing a
    special cautionary symbol on the packaging of newly approved medications.

F.D.A. Nominee Advances; Hurdles Linger

Article in today's New York Times -- F.D.A. Nominee Advances; Hurdles Linger, by Gardiner Harris:

    A Senate committee voted on Wednesday to approve Andrew von Eschenbach to
    head the Food and Drug Administration, but hurdles to his confirmation remain.

    Dr. von Eschenbach has been acting commissioner for a year. Action on his nomination
    was held up for six months because of objections from two Democratic senators, and
    now two Republicans have promised to delay a confirmation vote for entirely different reasons.

Govt Defends Remarks by Former EPA Chief

Article in the New York Times -- Govt Defends Remarks by Former EPA Chief, by the Associated Press:

    The former Environmental Protection Agency chief should not be blamed for telling
    residents near the World Trade Center site that the area was safe after the 2001
    terrorist attacks, the government told an appeals court Thursday.

    Federal officials also argued that a lower court judge was wrong to force Christine
    Todd Whitman to face a 2004 lawsuit by people in lower Manhattan and Brooklyn who
    said they were exposed to hazardous dust and debris from the fallen twin towers.

Farmers Pledge Steps to Avoid Contamination of Produce

Article from today's New York Times -- Farmers Pledge Steps to Avoid Contamination of Produce, by Jesse McKinley:

    Amid growing governmental pressure and public concern about an E. coli outbreak
    caused by contaminated spinach, California farmers promised new procedures for
    growing, handling and shipping their produce on Thursday, in hopes of lifting a
    week-old government warning about the crop.

    The guidelines were announced just hours after federal and state health authorities
    met with hundreds of concerned and occasionally angry farmers crammed into a Farm
    Bureau office here to offer their help in ending an agricultural crisis that is estimated
    by trade officials to have already cost the spinach industry $50 million.

Pattern of E. Coli Outbreaks Is Seen

Article in today's New York Times -- Pattern of E. Coli Outbreaks Is Seen, by the Associated Press:

    Federal health officials said Monday that before the current E. coli outbreak there
    had been 19 food-poisoning outbreaks since 1995 linked to lettuce and spinach. At
    least eight of those were traced to produce grown in the Salinas Valley in California.
    The outbreaks involved more than 400 cases of sickness and two deaths.

    The outbreaks led the Food and Drug Administration to write to California farmers
    last November, urging them to improve the safety of produce.

The After the J.D. Project and Urban Legal Careers

On Monday, October 9, 2006, Southwestern Law School will host a symposium, The After the J.D. Project and Urban Legal Careers, at its campus in Los Angeles.  The "After the J.D. Project" is the first longitudinal study of lawyer careers, tracing nearly 5,000 lawyers who were admitted to the bar in the year 2000.  Registration is $75 for non-Southwestern alumni seeking CLE credit, $50 for Southwestern alumni seeking CLE credit, and $40 for those not seeking CLE credit.   

Expertise in the Courtroom: Scientists and Wizards

On Saturday, October 21, 2006, the Villanova Law Review will host the Annual Norman J. Schachoy Symposium, on Expertise in the Courtroom: Scientists and Wizards.  Separate panels will address Judges, Evidence and Expertise; Post-Daubert Controversies; and Science, Scientists, and Ethics.  General registration is $75, and law student registration for non-Villanova students is $25.

E. Coli Linked to Calif. Grower

Article in today's Los Angeles Times -- E. Coli Linked to Calif. Grower, by Rong-Gong Lin II and Ashraf Khalil:

    Spinach from a large California-based farming operation has been tentatively linked to
    a widening bacterial outbreak that so far has caused one death and sickened 93 people
    in 20 states, health officials said Friday.

    One day after the U.S. Food and Drug Administration recommended against eating any
    fresh, bagged spinach because of the E. coli outbreak, Natural Selection Foods of San Juan    
    Bautista, Calif., issued a voluntary recall of all its packaged products containing the
    fresh greens. The company, which bills itself as the largest grower and shipper of organic
    produce in North America, also operates under the name Earthbound Farm.

Wyeth not negligent in hormone drug trial

Article on cnnmoney.com -- Wyeth not negligent in hormone drug trial:

     Jurors in the first trial against Wyeth's hormone replacement drug Prempro found
    that the company was not negligent and did adequately warn patients and doctors
    of the risk of cancer.

    The lawsuit, the first of 5,000 filed against the company to go to trial, charged that
    Wyeth had been negligent in testing, manufacturing and marketing the hormone
    replacement therapy.

    Lawyers for plaintiff Linda Reeves, 67, had also argued that the company failed to
    warn users and doctors about the need for regular screening for cancer and heart
    problems.

High Court to Post Same-Day Transcripts

Article in today's Washington Post -- High Court to Post Same-Day Transcripts, by Charles Lane:

   The Supreme Court announced yesterday that it will make same-day transcripts of its
    oral arguments available free on its Web site, the quickest and most complete public
    access to its proceedings the court has ever offered.

    There is no sign that the court is about to yield to calls for live television coverage,
    which the justices have steadfastly refused. But, in the quiet, tradition-bound world
    of the Supreme Court, yesterday's decision was almost revolutionary, court analysts said.

Guidant Settles Device Suit

Article in today's New York Times -- Guidant Settles Device Suit, by Bloomberg News:

    The Guidant Corporation, the maker of implanted heart devices, settled a fraud suit
    over its recalled defibrillator for an undisclosed amount, a plaintiffs’ lawyer said
    yesterday.

    The trial in the civil suit brought by two plaintiffs, Beatrice O. Hinojosa and Louis E.
    Motal, was scheduled to begin Monday in Corpus Christi, Tex. The plaintiffs claimed
    the company failed to warn them that their implanted heart devices might fail.