Case Notes
October 05, 2005
Highlights of the latest product liability cases from around the country.
Online: Explore the Depth of the CPSC on the Web
October 05, 2005
According to the overview on its Web site, <i>www.cpsc.gov</i>, the U.S. Consumer Product Safety Commission ("CPSC") is charged with protecting the public from unreasonable risks of serious injury or death from more than 15,000 types of consumer products under the agency's jurisdiction. Deaths, injuries and property damage from consumer product incidents cost the nation more than $700 billion annually. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard or can injure children.
Respond to Recalls: Claims and Defenses
October 05, 2005
Consumers often ignore product manufacturers' recalls of defective products despite manufacturers' best efforts. The unfortunate but inevitable result is that some consumers are injured. A reasonable defense for manufacturers is that the consumer's fault in ignoring the recall negates their liability. The limited authority available, however, indicates that a manufacturer probably will not be completely exonerated from liability. A consumer's failure to respond to a recall, nevertheless, can be raised as a comparative fault defense. This article reviews existing authority and suggests strategies for manufacturers and consumers when this situation occurs.
Leading Questions and Child Witnesses
October 05, 2005
Lawyers involved in product liability cases are occasionally involved with child witnesses, either as plaintiffs or as percipient witnesses to the critical events in the lawsuit. As in other types of litigation, child witnesses present a number of difficult challenges in product liability cases.
Using Daubert to Defeat Causation in the Delayed Diagnosis Claim
October 05, 2005
<b>Part Two of a Two-Part Article.</b> The <i>McDowell</i> case discussed in the first part of this article presented the question of "whether it is so if an expert says it is so." <i>See Viterbo v. Dow Chem. Co.</i>, 826 F.2d 420, 421 (5th Cir. 1987). <i>Daubert</i> and its progeny answered in the negative and established that an expert may not present a bare causation conclusion to the jury when that expert has no scientific basis for that conclusion or for any of the predicate inferences leading up to it. The <i>McDowell</i> claim failed because a physician's personal clinical experience, sometimes called anecdotal experience, is simply not a proper scientific basis for causation opinion testimony.
Merck Faces New Jersey Jury After Big Texas Loss
October 05, 2005
After Merck & Co.'s devastating loss in Texas in August in the first Vioxx case to go to a jury, the nation's eyes now turn to Atlantic City, where New Jersey's first case was set for trial on Sept. 12. There are about 5000 personal injury suits filed nationwide, about half in New Jersey, over the Merck painkiller that has been linked to increased risk of heart attack or stroke. Last month, New Jersey Superior Court Judge Carol Higbee, who is overseeing nearly 2500 Vioxx product-liability cases, rejected a Merck request to postpone the trial. The plaintiff's attorney, Christopher Seeger of Seeger-Weiss in Manhattan and Newark, told <i>The Wall Street Journal</i> that he was "absolutely thrilled" by the judge's action. "I just can't wait to get in a courtroom with this company," he said.
In the Aftermath of Katrina
October 05, 2005
In the aftermath of Hurricane Katrina, people from all walks of life and from all corners of the world want to reach out to do what they can to help the victims of this unfathomable disaster. Schoolchildren are raising pennies to help those in need while relief organizations send supplies from all regions of the country. On the ground where this disaster struck in Louisiana and Mississippi, however, thousands of caring individuals have been providing emergency first aid and medical care to their neighbors in need. When licensed health care workers respond to the urgent needs of the hurricane's victims, what kinds of liability might they be opening themselves up to?
Judge Won't Stop Suit Against Clinical Lab
October 05, 2005
In a ruling that breaks new ground in the area of drug products liability, a federal judge has refused to dismiss negligence and fraud claims against a clinical laboratory for allegedly conspiring with a drug manufacturer to mislead the FDA.
Company Agrees to Pay $74 Million to Resolve Allegations
October 05, 2005
Natick, MA-based Boston Scientific Corp. has agreed to pay $74 million to the United States to resolve an ongoing investigation concerning its 1998 distribution and subsequent recall of one of its coronary stent delivery systems. In agreeing to the settlement, the company did not admit to any wrongdoing.
Dangerous Drug Trials
October 05, 2005
A federal judge in Manhattan has dismissed for a second time class action claims against drug maker Pfizer Inc. by Nigerian families who claim the company put their children in dangerous drug trials without consent.
