Mass Tort Litigation Blog

Recall of Oscar Mayer/Louis Rich Chicken Breast for Listeria Risk

As noted in this article in the New York Times, there has been a product recall of

About 2.8 million pounds of fully cooked Oscar Mayer/Louis Rich chicken breast cuts and strips, manufactured by Carolina Culinary Foods, because it could be contaminated with Listeria monocytogenes, which can cause listeriosis. Listeriosis is an uncommon but potentially fatal disease that can cause serious or fatal infections in children, the elderly or those with weakened immune systems. Symptoms include high fever, severe headache and nausea. No illnesses have been reported.

BGS

Lytton on Clergy Sexual Abuse Litigation

Timothy Lytton has posted a paper on SSRN entitled Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law.  Here's the abstract:

By all accounts, the prevalence of clergy sexual abuse and its cover-up by Church officials represents a massive institutional failure. Obscured by all of this attention to the Church's failure is the largely untold story of the tort system's remarkable success in bringing the scandal to light in the first place, focusing attention on the need for institutional reform, and spurring Church leaders and public officials into action. Tort litigation framed the problem of clergy sexual abuse as one of institutional failure, and it placed that problem on the policy agendas of the Catholic Church, law enforcement, and state governments. This Article examines these framing and agenda-setting effects of clergy sexual abuse litigation. It argues that private lawsuits can have a powerful and beneficial effect on policymaking.

Several weeks ago, Lytton wrote a related article for the Boston Globe on the the church sexual abuse litigation, press coverage, and policy impact.  Lytton has devoted himself to understanding "social policy" mass torts.  Before turning his attention to sexual abuse cases, he was one of the country's leading experts on handgun litigation (I wrote a chapter for his book, Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts).

HME

Civil Procedure Prof Blog

To our list of blogs of interest for followers of mass tort litigation, we add Jeremy Counseller's and Rory Ryan's Civil Procedure Prof Blog, a new member of the Law Professor Blogs Network.  Welcome.

HME

Frequent Use of Pain Relievers Linked to High Blood Pressure in Men

Article in the Wall Street Journal -- Popular Pain Relievers Linked To High Blood Pressure Risk, by Peter Loftus.  Here's an excerpt:

Men who frequently take popular pain relievers are at increased risk of developing high blood pressure, a new study suggests.

The study included about 16,000 male health professionals who had no history of hypertension. Over four years, researchers at Brigham & Women's Hospital in Boston tracked how often the men used the pain relievers acetaminophen, aspirin and those known as nonsteroidal anti-inflammatory drugs, or NSAIDs. Acetaminophen is sold as Tylenol by Johnson & Johnson, Bayer AG sells aspirin, and NSAIDs are sold under many brands, including Wyeth's Advil.

Men who used acetaminophen six to seven days per week had a 34% higher risk of developing hypertension compared with nonusers, according to the study. Those using NSAIDs with the same frequency had a 38% greater risk of hypertension, while the risk was 26% greater for aspirin, according to the study.

BGS

Staten Island Ferry Case

The Staten Island Ferry crash of 2003, in which eleven passengers died and many others were injured, led to numerous wrongful death and personal injury claims against New York City.  Many of the claims have settled, but others remain in litigation.  The city has contended that under federal maritime law (specifically, the Limitation of Vessel Owner’s Liability Act), its liability is limited to the value of the ship.  Today, Chief Judge Edward Korman of the Eastern District of New York ruled against the city on this critical issue, finding that the failure to enforce a two-pilot rule (requiring that two captains be in the front-facing pilot house while the ferry is in motion) was negligent.  Judge Korman's opinion -- with an extensive negligence analysis citing such classics as U.S. v. Carroll Towing, The T.J. Hooper, and McCarty v. Pheasant Run -- belongs in a Torts casebook.  A New York Times article -- N.Y. Can't Limit Ferry Crash Damages, Judge Says -- reports on the decision:

A federal judge today rejected New York City’s attempt to use an obscure 19th-century maritime law to cap its liability in the 2003 crash of the Staten Island Ferry at $14 million.

The ruling exposes the city to tens of millions of dollars in damage awards to relatives of those killed and to scores of people injured when the boat, the Andrew J. Barberi, crashed into a maintenance pier at the Staten Island ferry terminal.

The city had argued that the accident was covered by an 1851 act, aimed at encouraging investment in the shipbuilding industry, that limited a boat owner’s liability to the value of the boat minus the repair costs — in this case $14.4 million.

The city has already paid out $27.6 million to settle two-thirds of the 186 damage claims. Of the 11 people killed in the crash, the estates of only two have settled with the city, for $3 million and $450,000.

The amounts of many settlements were held down, lawyers for the plaintiffs said, by the city’s argument that if it succeeded in capping the liability, the plaintiffs stood to win relatively little.

...

Judge Korman wrote: “The blame for this laxity lies squarely on the shoulders of the city.” The 1851 act limiting liability, he added, does not apply when the negligent parties include supervisors.

HME

Judge Denies Motion for New Trial in RI Lead Paint Case

Article in the Wall Street Journal -- Judge Affirms Verdict Against Lead-Paint Makers, by the Associated Press.  Here's an excerpt:

A judge on Monday ordered three former lead paint manufacturers to clean up contamination in Rhode Island and said he would appoint a special master to advise him on exactly what the companies should be required to do. Lawyers and financial analysts have said the cleanup could cost more than $1 billion.

The decision by Providence Superior Court Judge Michael Silverstein marks a major step forward in the state's lawsuit to force the companies -- Sherwin-Williams Co., NL Industries Inc. and Millennium Holdings LLC -- to clean up properties that contain toxic lead paint.

A jury last February found the three manufacturers liable for creating a public nuisance, and Judge Silverstein's 197-page decision affirms that verdict. Judge Silverstein did not predict a dollar figure or specify what the companies might have to do to fix the problem.

"Today's final ruling is validation of our long fight to protect the public health and to ensure that our hardworking taxpayers no longer have to solve the problem themselves," Attorney General Patrick Lynch said in a written statement.

Judge Silverstein also rejected the companies' motion for a new trial, saying the state presented enough evidence to support the jury's verdict. The companies said they plan to appeal to the Rhode Island Supreme Court.

BGS

Stent Risks May Result in Return to Heart Bypass Surgery

Article in the New York Times --  In the Stent Era, Heart Bypasses Get a New Look, by Barnaby J. Feder.  Here's an excerpt:

After more than a decade-long decline, is heart bypass surgery poised for a comeback?

Some doctors say it may be time to give bypass operations a second look. They include even some cardiologists who specialize in the far more popular alternative — using stents to keep coronary arteries open.

No one is predicting a sudden surge back to bypass, which is still a far more invasive and initially riskier way to treat plaque-clogged heart arteries, a condition that afflicts millions of Americans.

But in light of new safety concerns over the long-term risks of stents, as well as accumulating data indicating that the sickest heart patients may live longer if they receive bypass surgery instead, some well-known stent specialists say the pendulum may have swung too far away from bypass surgery. 

BGS

Cato on Williams and Class Actions

Mark Moller of the Cato Institute has an interesting post on Philip Morris v. Williams and Class Actions.

BGS

Passing of Class Action Expert David Berger

Article in the Chicago Tribune -- Class-Action Lawsuit Pioneer Berger Dies.  Here's an excerpt:

David Berger, a class-action lawsuit pioneer who won major cases in the Three Mile Island nuclear accident as well as disputes with oil companies, has died. He was 94.

Berger died Thursday at a hospital in West Palm Beach, Fla., from complications of pneumonia, said one of his sons, Jonathan Berger.

In 1971, he filed a nationwide class-action suit against all major oil companies, demanding that service station operators get the right to sell any brand of gasoline. In a 1984 settlement, his 50,000 clients won that right along with $37 million in damages.

"He was a bright, bright lawyer," said Richard A. Sprague, a prominent Philadelphia criminal attorney who practiced with Berger in the 1970s. "The world didn't realize the potential of class-action litigation until Dave Berger came along."

He helped win $25 million for people who lived near the Three Mile Island nuclear power plant following the partial meltdown at the plant in March 1979. He also won $5 million for a public health fund to study the effects of low-level radiation exposure they had experienced.

BGS

Vioxx Forum Shopping

Ted Frank of Point of Law has an interesting post today on "Madison County Vioxx forum shopping."

BGS

NYC Residents and 9/11 Illnesses

Article in the New York Times -- After 9/11, Ailing Residents Find a Place to Turn, by Anthony DePalma:

They say they suffer the same rasping cough, shortness of breath and gastrointestinal pains as thousands of rescue and recovery workers who fell ill from the dust and smoke at ground zero. They worry, as the others do, that the future may bring more health problems.

Yet residents, workers and students who returned to Lower Manhattan after the Sept. 11 attack say that their medical problems have largely been overlooked as officials focus increasing attention on the responders who were more exposed to the hazards.

***

Mr. Chaves, 53, developed asthma and severe acid reflux about a year and a half after Sept. 11, 2001. As his condition worsened, he tried to find out whether it was connected to the dust he had breathed in after the twin towers collapsed. Then last fall he heard that the city was giving millions of dollars to Bellevue Hospital Center to treat people excluded from other programs, like the one that monitors and treats recovery workers at Mount Sinai Medical Center.

Since that announcement in September, the number of people being treated at the W.T.C. Environmental Health Center at Bellevue Hospital has doubled to more than 900. Several hundred more people are on a waiting list, including many low-income residents of Chinatown and the Lower East Side, and immigrant workers without health insurance. And after Mayor Michael R. Bloomberg last week encouraged residents who might have been exposed to the dust to be checked by the clinic’s specialists, the number of patients is expected to rise substantially.

BGS

Wyeth Loses Prempro Trial

A jury found that Prempro caused the plaintiff's breast cancer and awarded Jennie Nelson and her husband $3 million, in a retrial of a Philadelphia HRT case.  Here's an excerpt from today's Philadelphia Inquirer story:

A Philadelphia jury blasted the drugmaker Wyeth yesterday for failing to warn a patient about breast-cancer risks of its hormone drug Prempro and awarded the Ohio woman and her husband $3 million in damages.

It was the second - and biggest - loss in litigation over Prempro. Wyeth has headquarters in Madison, N.J., with pharmaceutical operations in Collegeville. It has won two Prempro cases, has settled at least one, and has three more trials scheduled for this year.

Wyeth indicated it would appeal yesterday's verdict.

"We respectfully disagree that there is any scientific basis to support the jury's finding of a causal link between Wyeth's hormone therapies and the plaintiff's breast cancer," Barbara R. Binis, a Wyeth defense attorney from the Philadelphia office of Reed Smith L.L.P., said in a statement.

The company has said it faces about 5,000 cases over its hormone-replacement drugs, including Prempro and Premarin.

But plaintiffs' attorneys say cases involving at least 10,000 people have been filed nationwide in federal and state courts, including roughly 1,800 people in Philadelphia's Court of Common Pleas. Almost all involve breast cancer.

A Reuters story -- Jury awards plaintiff $3 million in Wyeth Prempro case -- notes that this was a retrial:

A previous Philadelphia jury also found in favor of the plaintiff, Jennie Nelson, in October. But the judge threw out that verdict and declared a mistrial, leading to the retrial that concluded on Tuesday.

The original jury at the Philadelphia Court of Common Pleas had awarded Nelson and her husband $1.5 million in compensatory damages. This time, Nelson was awarded $2.4 million and her husband $600,000.

The reason for the mistrial declaration was not disclosed at the time, with Nelson's attorney saying only that it was due to extraneous circumstances. There has been speculation since that the verdict may have been overturned as a result of juror misconduct.

The first Nelson trial (a phased trial using a reverse bifurcation structure) and the court's mistrial ruling had attracted attention from those looking for early signs of where the Prempro litigation might be heading.

HME

Supreme Court Reverses in Philip Morris Punitive Damages Case

Yesterday, the Supreme Court struck down the $79.5 million punitive damages award in the Oregon tobacco wrongful death case of Mayola Williams v. Philip Morris.  Here's the story in the Chicago Tribune about the 5-4 decision.  The Supreme Court's opinion did not decide whether the amount of punitive damages was unconstitutionally excessive as a multiple of compensatory damages.  In other words, we still don't know just how strictly the Court will apply the single-digit multiple standard of State Farm v. Campbell -- an issue of great practical significance in punitive damages cases.  But in the Williams case, the Supreme Court did address the punitive damages issue most applicable to mass torts, ruling that a jury may punish a defendant only for harm to the actual litigant, not for harm to others.

Today's New York Times ran an editorial criticizing the ruling as "a win for corporate wrongdoers."  The Times may well be correct that this Supreme Court "is more concerned about — and more willing to protect — the powerful than the powerless." The editorial contrasts the Court's narrow view of 8th Amendment protection for criminal defendants with its use of the due process clause to protect corporate defendants from punitive damages.  But on the core issue decided in the Williams case, isn't the Times missing the point?

[T]he court ruled that the award was improper because it punished Philip Morris for harm done to people who were not part of the lawsuit. There is nothing unusual, or wrong, about courts considering the broader impact of a wrongdoer’s misdeeds. As Justice John Paul Stevens noted in dissent, “A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim.” The fact that Philip Morris hurt so many other smokers along with Jesse Williams is surely relevant to its punishment.

The editorial makes it seem like the question is how much a defendant should be punished for its wrongdoing.  But this was not a criminal case or a government proceeding for a civil fine.  Nor was it a class action or other multi-plaintiff litigation.  It was a civil lawsuit brought by an individual plaintiff.  The question is whether an individual litigant is entitled to collect punitive damages for harm to others.  Ultimately, that's a question of aggregation:  Is it permissible to aggregate the amount of punitive damages on the defendant side, without aggregating the distribution of punitive damages on the plaintiff side?  If the goal is to punish a defendant for its harm to multiple victims -- and if we're looking to private civil litigation rather than to government proceedings -- doesn't it make more sense to accomplish this by collective litigation in which the claims of multiple victims can be resolved, rather than by permitting an individual to receive collective punitive damages?

HME

Chicken Recall for Bacterial Contamination

Article in the Los Angeles Times -- Bacteria prompt chicken recall, by the Times Wire Reports:

Carolina Culinary Food is recalling packages of Oscar Mayer ready-to-eat chicken breast strips with rib meat because they may be contaminated, the U.S. Department of Agriculture's Food Safety and Inspection Service said.

Officials said Georgia Department of Agriculture food scientists found Listeria monocytogenes in a sample. That type of contamination can cause listeriosis, which is potentially fatal.

BGS

Salmonella Outbreak in Peanut Butter

Article in the Wall Street Journal -- Salmonella Outbreak Traced To Peter Pan Peanut Butter, by the Associated Press:

ConAgra Foods Inc. is recalling some jars of Peter Pan and Great Value peanut butter after the products were linked to a recent salmonella outbreak that has sickened nearly 300 people.

Consumers should throw away all Peter Pan and Great Value peanut butter jars that have a product code beginning with the number "2111" imprinted on the lid, ConAgra said. Officials at the Omaha, Neb., company haven't said how much peanut butter will be affected by the recall, but said consumers can return the product lids for a full refund.

Officials with the Centers for Disease Control and Prevention believe this to be the first salmonella outbreak associated with peanut butter in the U.S.

Since August, the outbreak has sickened 288 people in 39 states, federal health officials said Wednesday. About 20% of them have been hospitalized but none has died, said Mike Lynch, a CDC epidemiologist. About 85% of the infected people said they ate peanut butter, CDC officials said. The largest number of cases were reported in New York, Pennsylvania, Virginia, Tennessee and Missouri.

BGS

Wyeth Wins Prempro Trial in Federal Court in Arkansas

Article in the Wall Street Journal -- Jury Finds for Wyeth In Hormone-Drug Trial, by the Associated Press:

A federal jury ruled for Wyeth Pharmaceuticals on Thursday in the latest lawsuit claiming that the company's hormone-replacement drugs cause breast cancer.

After deliberating for more than a day, a jury in Little Rock sided with New Jersey-based Wyeth in a case filed by Helene Rush of Little Rock.

In her lawsuit, Ms. Rush accused the drug maker of negligence in its hormone replacement therapy. More than 5,000 similar suits have been filed across the country.

Ms. Rush, 72 years old, was diagnosed with breast cancer in 1999. Her attorneys say she took Wyeth's estrogen-progestin hormone therapy for nearly a decade.

Lawyers for Wyeth said Ms. Rush likely would have developed breast cancer regardless of whether she took Premarin and Prempro because of genetic and health factors, such as weight gain and a history of smoking.

BGS

FDA Warning of Wrong Drugs Sold via Internet

Article in the Wall Street Journal -- FDA Warns of Wrong Drugs Being Sold Over the Internet, from the Associated Press:

Consumers who thought they were purchasing sleep aids, antidepressants and other drugs over the Internet instead were shipped a powerful antipsychotic, sending some unwitting victims to the emergency room, federal health officials warned Friday.

The Food and Drug Administration said a number of consumers took the schizophrenia drug, haloperidol, after being shipped what they thought were a variety of different pills, including Ambien, a sleep aid, and the anti-anxiety medications Xanax and Ativan. Others thought they were getting the antidepressant Lexapro.

BGS

Class Actions Spreading to Europe

Article in The Economist -- If you can't beat them, join them: An infamous legal strategy crosses the Atlantic.  Here's an excerpt:

THE idea that American-style class actions could soon be coming to Europe makes most European businessmen shudder. They fear the sort of astronomic damages granted to aggrieved consumers and shareholders on the other side of the Atlantic: $145 billion awarded by a Florida jury against five tobacco companies on behalf of all American smokers in 2000 (later overturned); a $1.1 billion settlement against Ahold, a Dutch retailer, in a shareholders' class action in 2005; a $65m settlement last year against IBM in an overtime claim by technical and support staff.

Last week a federal appeals court gave the go-ahead to what could become the biggest class action in history: a gender-discrimination claim against Wal-Mart on behalf of some 2m past and present female employees in America. The claim still has several legal hurdles to cross, but it could end up costing the world's biggest retailer hundreds of millions, if not billions, of dollars, especially if it is extended to include women working for the firm abroad.

But American companies are not the only ones involved. Increasingly, the notoriously long arm of American law is stretching into Europe and beyond. A class action brought by a group of American shareholders of Parmalat, a failed Italian dairy giant, is pending in New York. Earlier this month, a group of investors in BP launched a class action in Alaska against the British petroleum giant over the £70m severance package offered to John Browne, its departing boss. British Airways is also facing a class-action lawsuit in America, and Lufthansa settled one last year.

When class actions were first introduced in America in the mid-1960s, they were seen as means for powerless individuals, whose claims were not worth pursuing separately, to win redress against mighty corporate evil-doers. Sadly, juries took on the task rather too eagerly, awarding not just economic damages, but swingeing punitive ones too. Starting with securities claims, the actions soon spread to mass consumer suits involving tobacco companies, pharmaceutical firms, medical malpractice, employment issues and so on. Nowadays, the winners are not so much the victims of corporate wrongdoing as the lawyers.

BGS

California Supreme Court Decision on Tobacco Statutes of Limitations

Article in the Los Angeles Times -- Court ruling reignites tobacco suits, by Maura Dolan:

The California Supreme Court made it possible Thursday for people who become ill from smoking to once again win large judgments from tobacco companies, unanimously rejecting a four-year-old federal court decision that had virtually halted all smoker lawsuits in the state.

"It reopens tobacco litigation in California," said Northeastern University Law Professor Richard A. Daynard, who heads a group that promotes lawsuits against the industry. "The light just went from red to green."

Since California began allowing individual lawsuits over smoking damage in 1998, plaintiffs had won some of the biggest tobacco awards in the country, including a $28-billion jury verdict in Los Angeles.

The awards came to a halt when a federal appeals court in 2002 set a strict deadline, saying smokers should have filed suit years earlier, when it became widely known that smoking was a health hazard and addictive.

Taking advantage of the federal ruling, the tobacco industry had exercised its right to move cases into federal court, which hears disputes between litigants in different states. Lawyers said every single case was dismissed.

In a decision written by Justice Carlos R. Moreno, the high court said that although judges and juries can presume that plaintiffs should have known of the dangers and filed their lawsuits earlier, smokers can rebut that presumption by presenting evidence that tobacco companies misrepresented the risks.

"Although knowledge of smoking addiction has been widespread … ," Moreno wrote, "tobacco companies misrepresentation of the danger and addictiveness of smoking were also widespread."

BGS

Mayor Bloomberg Urges More Funding to Treat 9/11 Worker Illnesses

Article in the New York Times -- Bloomberg Urges More Aid for Those Ailing After 9/11, by Anthony DePalma:

Mayor Michael R. Bloomberg called on the federal government yesterday to increase health spending sharply for thousands of people who became ill after the Sept. 11 attack on the World Trade Center, and called for the creation of a special fund to compensate those who are sick.

Mr. Bloomberg said he would lobby the Bush administration for $150 million a year to cover the cost of screening, treating and monitoring rescue workers, business owners, residents and others who might have been affected by the smoke and dust released by the destruction of the twin towers.

The current federal budget proposal includes $25 million for such programs.

At a City Hall news conference yesterday, Mr. Bloomberg said he was hopeful that a Congress controlled by Democrats would respond positively to the city’s needs.

Although his past statements about 9/11 health issues have been measured, Mr. Bloomberg yesterday strongly linked the trade center dust that blanketed Lower Manhattan to respiratory, digestive and mental health problems that have been diagnosed in recovery workers and residents.

BGS