Intoxicated Man Loses Big at Casino, Wants His Money Back

Yes, folks, you read the headline correctly.  And you are probably about to say something like “Right, and the sky is blue.” Well, the sky was slightly less blue for Mark Johnston when he awoke from a bender in Vegas only to find out that his wallet was $500,000 lighter. Like many a brave soul before him, Mr. Johnston traveled to Vegas, enjoyed a hefty amount of alcohol, and subsequently lost a staggering amount of money at a casino. Of course, none of us have experienced a booze-involved cold streak at the casino, but we have all heard horror stories.

What is unusual about Mark Johnston’s situation, apart from the fact that he lost more money in one night than the average American earns in over a decade, is that Mark Johnston has filed suit to get his money back. Mr. Johnston, a self-made millionaire, alleges that he was already intoxicated when he entered the casino.  He then consumed approximately 20 drinks courtesy of the casino, and he now claims that the free alcohol caused him to “black out.”  As a result, Mr. Johnston has no memory of losing the money. It will be interesting to see what happens with this case.  Mr. Johnston apparently bases his claim, at least in part, on a law which prohibits casinos from serving visibly intoxicated patrons.  Presumably Mr. Johnston would be within the class of people the law is meant to protect, and one could definitely argue that this is the type of harm the law is meant to prevent.  However, I imagine that proving causation will be challenging.  Also, the casino will likely advance numerous affirmative defenses. If I had to bet, I would wager that this case is going to be nasty and expensive for both sides.

The Solution To Pain Killer Addiction: Litigation

Addiction to prescription pain killers is actually a serious problem in this country.  As a former  prosecutor, I saw it all too often where a person started out with a legitimate need for prescription narcotics, but over time, became addicted and began to abuse pills.  What started with a prescription at the pharmacy ended witha bust for buying stolen pills from drug dealers.  Clearly, there’s a need a for some reform in this area.  But could litigation really be the avenue to help patients avoid addition?  Some Nevada lawmakers clearly think more litigation is the answer.

Nevada lawmakers have proposed a new bill that would create liability for physicians and drug manufacturers if a patient becomes addicted to prescription drugs.  Under the proposed law, if a patient prevails in the suit, the defendant would be liable to pay for the patients’ rehab and attorney’s fees, as well as possible punitive damages.  State Sen  Tick Segerblom, one of the bill’s sponsors, told the AP,  “They know the person can get addicted to the drug so they should pay for the process of them getting off it.”  Oh, to live in the simple black and white world of a state senator.

Prescription narcotics are without a doubt necessary for pain management in a great number of cases.  And doctors will say that just about anyone who takes prescription narcotics will develop at least some level of dependency.  They key is making sure that the dependency doesn’t turn abusive and that patients are properly weaned off the drugs when the time comes.   Yet even if a doctor properly manages a patient’s treatment and oversees their prescription drug use, this bill seeks to hold them strictly liable if the patient begins abusing prescription drugs.  Not surprisingly, the bill has faced sharp opposition from the medical community.   It’s hard to see how that would help the situation other than to make doctors gunshy about prescribing the drugs.

Of course, as little sense as the law makes with respect to doctors, it makes even less sense with respect to the drug manufacturers.  There’s no doubt the drugs are vital to a great number of patients, and they have legitimate place in the practice of medicine.  If the drug makers have provided all of the proper warnings, how can they be held liable for a doctor’s judgment as to whom they should be prescribed to and in what amount?  Are we trying to get the drug makers involved in the process of actually prescribing the drugs?

In the end, it’s doubtful this bill will pass.  But if it does, it will accomplish nothing more than putting a few more bucks in the pockets of some plaintiff’s attorneys.

Biggest Verdict in Nevada History – Perhaps a Case of Misplaced Anger?

A Nevada jury on May 7 handed down what is reportedly the largest punitive damages award in the state’s history and, as the Plaintiff’s lawyer announced at a subsequent press conference, the “largest verdict in Nevada history, period.” The jury awarded $500 million in punitive damages to the Plaintiff, 62, who reportedly contracted hepatitis C because nurse anesthetists assisting with the Plaintiff’s colonoscopy reused between various patients vials of anesthetic, which had become contaminated by syringes that nurses had reused among patients with hepatitis C. Who got hit with the $500 million dollar verdict? The maker of the anesthetic!

Darren McKinney, spokesman for the American Tort Reform Association, reportedly called the verdict “insane.” He said that “to suggest that drugmakers can be held liable for the unhygienic use of a drug is obscene. They went after drug companies because they knew they had the deep pockets.”

The Plaintiff’s theories of liability against the makers of the drug reportedly were: (1) that the drug packaging did not include appropriate warnings against reusing vials between patients; and (2) that 50-milliliter vials of the anesthetic should not have been sold to endoscopy centers because “they tempted nurses to reuse the vials instead of throwing away leftover sedative.” Of note, nurse anesthetists, like those who could not withstand the temptations presented by drug manufacturers here, are trained specialists in the administration of anesthesia and for whom the median annual salary in 2009 was $157,724.00. The doctor and nurses who performed the Plaintiff’s colonoscopy, however, reportedly settled their malpractice claims prior to trial.

Whatever the theory of liability relied upon, it certainly appears as though something inflamed the jury. One possible explanation may be the actions of one of the defendant’s representatives during the trial itself. Reportedly, the jurors were “miffed nobody from the Israel-based [company] attended the trial, and they universally ridiculed” the United States-based company executive who testified about the drug and its uses. The jury forewoman reportedly said of the witness: “Mr. Lea did not impress us. What he said, what he didn’t say, all that stammering. The defendants need to get more aggressive if they want to win some of these cases.”

Both defendants, including the Israel-based Teva Pharmeceutical Industries, have said they will appeal the verdict.

Ninth Circuit Reverses Exclusion of Plaintiff’s Expert in Medical Device Case

You know you’re in trouble as defense counsel when the appellate court’s opinion starts with the sentence: “[The Plaintiff] has suffered a miserable ordeal since she had elbow surgery. ” That can only suggest that reading the court’s ruling will be a miserable ordeal for the defendant. So begins the opinion in last week’s Primiano v. Cook, — F.3d —-, 2010 WL 788906 (9th Cir. March 10, 2010) [PDF]. Analyzing the admissibility of expert medical testimony at the summary judgment stage, the Ninth Circuit reversed the ruling of the trial court, which had excluded the Plaintiff’s medical expert and granted the defendants’ motion for summary judgment.

The Plaintiff, a 36 year old woman, suffered a fall in her kitchen, broke her right elbow, and ultimately required elbow replacement surgery. Her surgeon used an artificial elbow manufactured by the Howmedica Osteonics Corporation. Apparently, during the surgery, the surgeon realized that one of the component parts of the artificial elbow was intended to be used for a left elbow, not a right elbow. He then contacted a representative of Howmedica, who indicated that the component part was symmetrical, equally functional, and thus, able to be used for the surgery on the Plaintiff’s right elbow with only minor modifications. Following the surgery, all seemed to be well initially, but the Plaintiff ultimately experienced difficulties with the elbow replacement and required four additional surgeries, including the removal and replacement of the original artificial joint. Subsequent analysis revealed that the original artificial elbow had excessive wear. She then sued Howmedica, as the manufacturer of the device, its parent company, a Howmedica sales representative, and her surgeon under various theories of recovery, including products liability (the only cause of action at issue on the appeal). The suit was heard by the Honorable James C. Mahan of the U.S. District Court for the District of Nevada.

Noting that the prosthesis had been “malaligned,” the defense experts also argued that the life of the device would be limited due to the Plaintiff’s relative youth, level of activity, and her pre-existing rheumatoid arthritis. (Young people wear out artificial joints more quickly than older people, they said.). The district court excluded the testimony of the Plaintiff’s expert, Dr. Arnold-Peter Weiss, who had opined that “the polyethylene bushing had worn through in less than eight months, ‘not a usual or expected circumstance.’” The district court appeared concerned by the fact that Dr. Weiss had neither seen nor spoken with the Plaintiff as well as the fact that he could testify that the device failed but not why it did so. With no expert testimony supporting the Plaintiff’s case, the court granted the defendants’ motion for summary judgment. On appeal, the Ninth Circuit addressed the application of Federal Rule of Evidence 702 and Daubert to the testimony of expert physician witnesses. Analyzing the background, qualifications, and testimony of Dr. Weiss, the Ninth Circuit noted that they “[left] room for only one conclusion regarding its admissibility. It had to be admitted.” In so doing, the court noted:

Nevada law establishes that “those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.” In Nevada, a plaintiff need not “produce direct evidence of a specific product defect [or] negate any alternative causes of the accident.” An “unexpected, dangerous malfunction” suffices. Since Dr. Weiss, with a sufficient basis in education and experience, testified that the artificial joint “fail[ed] to perform in the manner reasonably to be expected in light of [its] nature and intended function,” that was enough to assist the trier of fact. He did not have to know why it failed.

The district court’s other concerns, that Dr. Weiss never saw or talked to Ms. Primiano, and there was no publication supporting his opinion that the device failed extraordinarily early, might be useful to the jury as impeachment, but neither furnished an adequate basis for excluding his opinion. What he most needed to see was what was inside her arm, not outside it, and he did. He saw the x-rays. He also saw the polyethylene from the implant installed in Primiano’s first surgery. As for lack of a publication backing his opinion up, Daubert offers several reasons why an opinion unsupported by peer-reviewed publication may be admissible, and Dr. Weiss furnished another one: that the phenomenon is so extraordinary that the specialists who publish articles do not see it in their practices.

(Emphasis added).

The Ninth Circuit then reversed the trial court’s granting of the defendants’ motion for summary judgment. An interesting result, as the opinion suggests that an expert who has never examined – or presumably even met – an injured Plaintiff can create a fact issue on summary judgment in a products liability action by claiming that a medical device failed too early without articulating why it did so. The district court had noted that evidence of rapid wear did not necessarily make the device defective. The defense experts did offer an explanation for the wear of the device, namely that devices tend to wear far more quickly when placed in the joints of younger – and presumably, more active – patients. Further, the defense pointed to the fact that this Plaintiff suffered from rheumatoid arthritis which further contributed to the wear. Thus, while the defense posited a specific reason for the rapid wear of the device, the Plaintiff’s expert simply offered the conclusion that the device should have lasted longer than it did. That is now enough to defeat summary judgment. (Interestingly, the Plaintiff did not sue the surgeon for malpractice but only as an agent of the manufacturer of the artificial elbow).