Improperly Attempting to Circumvent the Learned Intermediary Doctrine: Challenging the Adequacy of Warnings to Physicians
July 27, 2005
The learned intermediary doctrine is one of the most important doctrines for medical device and pharmaceutical drug defendants in product liability cases because under the doctrine, they are often able to obtain summary judgment on failure to warn claims. (The learned intermediary doctrine has been adopted and recognized in at least 45 states. <i>See Larkin v. Pfizer, Inc.</i>, 153 S.W.3d 758, 767 (Ky. 2005).) The learned intermediary doctrine provides that a manufacturer, designer or distributor of a medical device or pharmaceutical drug does not have a duty to directly warn patients of possible dangers associated with the use of the device or drug. <i>See Presto v. Sandoz Pharm. Corp.</i>, 487 S.E.2d 70 (Ga. Ct. App. 1997). Rather, "'a warning as to possible danger in its use to the prescribing physician is sufficient.'" <i>Id.</i> at 73.
Case Notes
July 27, 2005
Highlights of the latest product liability cases from around the country.
Extraterritorial Discovery Disputes: Do Foreign Litigants Stand a Chance?
July 27, 2005
Say you defend a British corporation that is subject to the laws of England and Wales against a U.S. plaintiff who is suing your client for the negligent design and manufacture of a vehicle that resulted in the death of her child. The plaintiff's claim alleges that your client was aware of the risks associated with the design of the vehicle and knew that safer alternative designs were available. Because of cost concerns, however, your client knowingly and intentionally decided to forego the added safety features and implement the cheaper alternative.
Medicare Liens: A Stumbling Block to Settlement
July 27, 2005
Faced with rising litigation costs and unpredictable juries, it is understandable that many product liability litigants — on both sides of the courtroom — eventually think about settlement in lieu of trial. In cases involving catastrophic injury, however, staggering medical expense liens often control the feasibility of reaching an acceptable agreement.
Online: Learn About Prescription Drugs on the Web
July 27, 2005
Public Citizen ("PC"), a public interest group, has released a new edition of "Worst Pills, Best Pills," a book analyzing at least 500 prescription drugs, and concluding that at least 200 of them may pose health risks. The group has launched a Web site, <i>www.worstpills.org</i>, which provides information about unsafe drugs, drug pricing and access to the entire contents of the just-published book for a subscription fee.
You Just Can't Give It Away
July 27, 2005
Last month, we explained that the proposition that a creditor can do whatever it wants with its recovery from a Chapter 11 debtor may seem to be a fundamental right -- but that in the context of confirmation of a Chapter 11 plan, that right may not be unqualified. It may, in fact, violate well-established bankruptcy principles. We went on to explain that one such principle that applies only in the context of non-consensual confirmation of a Chapter 11 plan, or "cramdown," is commonly referred to as the "absolute priority rule," a pre-Bankruptcy Code maxim that established a strict hierarchy of payment among claims of differing priorities.
Where Will Silica Litigation Go?
June 30, 2005
It has been reported in the national press that plaintiffs' lawyers are mapping out a litigation scenario for silica based on the assumption that it will follow the asbestos model, <i>e.g.</i>, Warren, Susan, "Silicosis Suits Rise Like Dust: Lawyers in Asbestos Cases Target Many of the Same Companies," Wall St. J., Sept. 4, 2003, at B5; Glater, Jonathan D., "Suits on Silica Being Compared to Asbestos Cases," N.Y. Times, Sept. 6, 2003, at C1.
After Texas Court Avoids Question on Duty to Warn, Can Suppliers Relax?
June 30, 2005
The nation's silica litigation attorneys and their clients kept a close watch on a case decided last year in Texas that was supposed to help define the limits of liability for failure to warn of silicosis danger. It took nearly 2 years for the Texas Supreme Court to finally issue its decision in <i>Humble Sand & Gravel Inc. v. Gomez</i>, 146 S.W.3d 170 (Tex. 2004), holding that flint supplier Humble Sand & Gravel Inc. had no duty to warn companies whose employees used the product for abrasive blasting that there were risks associated with silica dust in the workplace. The reason the court gave for its decision was that the risks of silica dust in the workplace had been known for years and companies that regularly dealt with blasting materials were "sophisticated users."
Insurance Coverage for Silica Claims
June 30, 2005
Faced with increasing exposure, corporate policyholders that have or may receive silica-related claims should consider the potential for insurance coverage that may be available to respond and should realize and maximize the full benefit of their insurance policies.
News Briefs
June 30, 2005
Highlights of the latest silica news from around the country.
