Wednesday, February 27, 2013

Plaintiff Wins $3.35 for Injuries From J&J Pelvic Mesh Implants

Plaintiff Wins $3.35 for Injuries From J&J Pelvic Mesh Implants:

The first mass tort trial over a Johnson & Johnson unit's pelvic mesh product ended in a $3.35 million verdict for the plaintiff, and the jury is weighing punitive damages.
After eight weeks, the  jury on Monday found Ethicon, the manufacturer, liable for injuries from the Gynecare Prolift surgical mesh implant.
The case, In Re Pelvic Mesh/Gynecare Litigation, No. 291, consolidates 2,182 suits in Atlantic County Superior Court.  The case was tired before Judge Carol Higbee who presided over the Vioxx mass tort litigation in New Jersey.
The litigants are women who claim they experienced complications as a result of implantation of one of several pelvic mesh products to treat organ prolapse — where organs slip or sink out of place — or urinary incontinence.
Linda Gross of Watertown, S.D., filed her complaint in November 2008, claiming she underwent 18 surgeries to correct injuries caused by a Gynecare Prolift mesh implant.

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Tuesday, February 26, 2013

Supreme Court hears prison guard assault case under Federal Torts Claims Act - Torts Blog

Update: Argument Recap Kevin Russell, Scotus Blog

Argument centers on an exception to an exception.  The Federal Tort Claims Act 28 USC 2680 (h) provides for the United States to be liable for the tortious acts of its agents  except for claims of assault, battery, false arrest and imprisonment, etc. provided that the exception does not apply to federal law enforcement officers. - gwc

Torts Blog: Supreme Court ready to hear another case on the Federal Torts Claims Act:
by Prof. Alberto Bernabe
Tomorrow, the Court will hear another case against the US based on the Federal Torts Claims Act challenging a narrow interpretation of the Act by the Court of Appeals for the Third Circuit.  The case involves a claim filed by an inmate in a federal prison who alleges he was beaten up and forced to perform oral sex on a prison guard.  The District Court dismissed the complaint and the Court of Appeals for the Third Circuit affirmed holding that the government is liable only for injuries committed by law enforcement officers when they are “executing a search, seizing evidence or making arrests for violations of federal law.” 

It is not too surprising to see the court interpret the statute so narrowly.  Federal courts have tended to favor a narrow interpretation of the statute in order to protect the government of the possible liability, but, at least according to some sources, the Third Circuit is in the minority when it comes to the interpretation of the particular section of the statute relevant to the case.  

Interestingly, the US government itself has changed its position since the beginning of the case.  In its brief, the solicitor general is now arguing that the proper interpretation of the statute should be broader, suggesting that law enforcement officers should be liable for wrongs done while acting within the scope of their employment, regardless of whether they occur during a search, a seizure of evidence, or an arrest.  The solicitor general now seems to support the position that the Third Circuit’s approach improperly limits the courts’ ability to remedy government wrongdoing as Congress intended. 

The case is called Millbrook v. United States.  Go here for all the relevant documents, including briefs and lower court opinions.  Go HERE for the audio of oral argument.

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Opening statements blame BP and Transocean for massive oil spill |

Opening statements blame BP and Transocean for massive oil spill |
by Richard Thompson - The Times-Picayune,

Some common themes emerged during opening statements in the long-awaited civil trial against BP and its partners in the ill-fated Macondo oil well, which began Monday at the federal courthouse in New Orleans.
Attorneys took aim at BP, Transocean and cement contractor Halliburton, as well as other BP contractors, in an early effort to limit their own liability.
Among the recurring story lines and accusations:
  • That BP, which held the lease on the Macondo well and oversaw drilling operations on Deepwater Horizon rig, was more concerned with profits than safety, as it ran behind schedule and over-budget on the well, and that BP rig supervisors had botched a crucial safety test before the 2010 drilling-platform explosion;
  • That Transocean, which owned the drilling rig and supplied both the rig and the crew to BP, had not properly trained its crew;
  • That Halliburton, which was hired by BP to pour the cement plugs in the Macondo well, used a type of cement that was known to be risky but did not succeed in sealing the well.

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Sunday, February 24, 2013

OTHERWISE: Tobacco Research Center replies to ALI on industry influence

OTHERWISE: Tobacco Research Center replies to ALI on industry influence:
The Center for Tobacco Control Research and Education hassharply criticized the ALI's response to the Center's recent study.  The Center revealed that fifty years ago tobacco industry lawyers secretly - and apparently successfully - lobbied American Law Institute Reporter William Prosser.  His draft was modified to exempt "good tobacco" from the new strict liability rule in the ALI's landmark Section 402A the scripture of contemporary product liability law.  The ALI responded with a cursory "we tell our members to leave their clients at the door".  The Center responds:
"The ALI’s refusal to engage the issues we document is the most troubling aspect of their response. If  the ALI’s goal is to create credible, independent assessments of law, it  must implement the same conflict of interest policies that have become routine at other comparable organizations. The ALI responders’ out-of-hand dismissal of the unrefuted documentary evidence we present and the associated recommendations to correct serious flaws in  the ALI’s conflict of interest policies belie their professed commitment to “consider legitimate criticism expressed in careful and responsible scholarship."

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Saturday, February 23, 2013

Gulf Coast States Jockey Over Settlement on Deepwater Horizon Oil Spill -

Gulf Coast States Jockey Over Settlement on Deepwater Horizon Oil Spill -
by Barry Meier and Clifford Krauss
"With a major civil trial scheduled to start Monday in New Orleans against BP over damages related to the explosion of an offshore drilling rig in 2010, federal officials and those from the five affected Gulf Coast states are trying to pull together to strike an 11th-hour settlement in the case"

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Thursday, February 21, 2013

Crowd Cheers After McCain Tells Aurora Victim's Mother She Needs 'Straight Talk' (VIDEO) | TPM LiveWire

Talking Points Memo reports that this video was unfairly edited by the local TV station.  Before his blunt "straight talk"  McCain did offer polite condolences to the inquirer.  -  GWC
Crowd Cheers After McCain Tells Aurora Victim's Mother She Needs 'Straight Talk' (VIDEO) | TPM LiveWire: "Constituents at a town hall hosted by Sen. John McCain Wednesday in Phoenix cheered after the Arizona Republican told the mother of an Aurora, Colo. shooting victim that an assault weapons ban could not get through Congress."

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Wednesday, February 20, 2013

Barack Obama - editor

Why haven't the White House speechwriters learned to double-space?  
Click HERE for a zoomable version which enables you to see Barack Obama's edits of the draft State of the Union Address.

Saturday, February 16, 2013

Hip Implant’s Risks Inadequately Assessed, DePuy Report Found in 2010 -

Hip Implant’s Risks Inadequately Assessed, DePuy Report Found in 2010 -

A review conducted internally by Johnson & Johnson soon after it recalled a troubled hip implant found that the company had not adequately assessed the device’s potential risks before it was used in more than 90,000 patients, court testimony on Thursday showed.
The engineering report, which was done in 2010, also found that Johnson & Johnson’s orthopedic unit had used inadequate or incorrect standards in trying to assess some of those risks before first selling the implant in 2003. The device at issue — the Articular Surface Replacement, or A.S.R. — proved to be among the most flawed orthopedic devices sold in recent decades.

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The Hip Replacement Case Shows Why Doctors Often Remain Silent -

The Hip Replacement Case Shows Why Doctors Often Remain Silent - by Barry Meier

THE note sent by a doctor to several executives at Johnson & Johnson was blunt: an artificial hip sold by the company was so poorly designed that the company should slow its marketing until it understood why patients were getting hurt.
Andrew Testa for The New York Times
A faulty hip replacement a doctor removed from a patient.
The doctor, who also worked as a consultant to Johnson & Johnson, wrote the note nearly two years before the company recalled the device in 2010. And it was far from the only early warning those executives got from doctors who were paid consultants. Still, the company’s DePuy orthopedic unit plowed ahead, and those consultants never sounded a public alarm to other doctors, who kept implanting the device.

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Thursday, February 14, 2013

OTHERWISE: Unquotable: The Annotated 2013 State of the Union - James Fallows - The Atlantic

Except for 'not red states, not blue states, but the United States of America" Barack Obama - a fine rhetorician - is not a generator of snappy lines.  No Kennedyesque "ask not what your country can do for you..." phrase will capture the Obama years.  Former Presidential speechwriter and analyst of political rhetoric James Fallows dissects Obama's fifth State of the Union address.  An excerpt from the Fallows intro  follows. Click though for the annotated full  text of the SOTU.  Well worth the effort.  - GWC

OTHERWISE: Unquotable: The Annotated 2013 State of the Union - James Fallows - The Atlantic:

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Saturday, February 9, 2013

OTHERWISE: Judge Rakoff gets vigorous support in Second Circuit Appeal

OTHERWISE: Judge Rakoff gets vigorous support in Second Circuit Appeal:
Judge Rakoff got some good support in his confrontation with the S.E.C. on the sweetheart deal with financial giant Citigroup. -  gwc

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Tuesday, February 5, 2013

Reporter as Amicus Applies Restatement 3rd Duty Analysis to PCB Exposure Case

In Nishida v. Pharmacia Third Restatement of Torts Reporter Michael Green joins with his colleague Jon Cardi and several other torts professors as friends of the court  to persuade the Missouri Court of Appeals that a trial court misunderstood the Restatement and the applicable California law.   The trial judge concluded that the chemical company did not owe a duty of reasonable care to one exposed to its PCB's because the product uses and  type of harm plaintiff suffered (non-Hodgkins lymphoma) were not foreseeable to the manufacturer Monsanto (now known as Pharmacia).  Such particular determinations violate the essential thrust of the Restatement - and California law.

Green and Cardi, et al.  assert, in the amicus brief drafted by Texas appellate lawyer Brent Rosenthal that
The essential characteristic of a no-duty determination is that it applies to a specific category of factual scenarios and can be applied in similar cases without reference to the particular facts of those cases.  
Viewing the question of duty as a categorical determination rather than as a fact specific inquiry “also has the benefit of providing clearer rules of behavior for actors who may be subject to tort liability and who structure their behavior in response to that potential liability.”
The trial court held that persons exposed to PCB's in the waste disposal process were "bystanders", not persons whose exposure was "foreseeable or intentional".  Such a fact-sensitive determination intrudes on the jury's province - which is to determine the question of foreseaebility.  Instead the court preempted the jury's role of determining whether Monsanto - maker of over 99% of PCB containing products - should have foreseen and acted to protect those who would be exposed to the toxin at all points in the product life cycle - including disposal.

Students in my class who read the brief will note that two of the cases cited provided the facts for final exam questions. - gwc
h/t Torts Prof Blog
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City Bar Honors Chen Guang cheng

Chen Guangcheng at the National Cathedral

Chen Guangcheng, the blind Chinese activist dubbed a "barefoot lawyer" by his champion Prof. Jerome Cohen, will be presented with an honorary membership in the New York City Bar Association - the nation's oldest.

The Dangers of Rights Lawyering in China and the Role of 
American Law Firms: A Conversation with Chen Guangcheng 
and Professor Jerome Cohen; 
Presentation of City Bar 
Honorary Membership to Chen Guangcheng
Thursday, February 7, 2013, 6 pm - 8 pm 
New York City Bar Association, 42 West 44th Street, New York, NY