The topic of preemption comes up regularly in our posts, because it is such an important issue in products liability litigation.  As you can imagine, most of the cases come out of the drug context – the design, manufacture, and labeling of prescription drugs, so heavily regulated and controlled by the Food and Drug Administration, makes the drug industry a perfect forum to litigate preemption issues in products cases.

Recently, the U.S. District Court for the District of South Carolina heard a case in which the primary issue was preemption.  In Fisher v. Pelstring, et al., No. 4:09-cv-00252, 2011 WL 4552464 (D.S.C. Sept. 30, 2011), the court considered the case of William Fisher, who was diagnosed with a neurological condition after taking the generic version of a prescription drug used to treat acid reflux that was manufactured by a company called PLIVA.  Mr. Fisher and his wife brought medical malpractice causes of action against the doctor who prescribed the drug, as well as products liability causes of action against Pliva and two makers of the prescription brand of the drug, including strict liability, breach of express warranty, negligent misrepresentation, breach of undertaking special duty, fraud and misrepresentation, and constructive fraud.

There is something very important to note about the labeling of prescription drugs versus the labeling of generic drugs, as the court noted in its decision.  Brand name manufacturers are responsible for “the accuracy and adequacy of [a drug’s] label,” meaning that they must go through the expensive and lengthy process of getting FDA approval for its label.  Generic manufacturers, on the other hand, are only responsible for making sure that the label they use is the same as the one used for the brand-name drug.

The plaintiffs argued that PLIVA failed to adequately warn consumers of the risk of neurological disease on its label, and that such a failure constituted a violation of state products liability laws.  Now, while the Fisher case was moving along, the U.S. Supreme Court was considering the case of PLIVA, Inc. v. Mensing, —U.S.—, 131 S. Ct. 2567 (2011).  In Mensing, the Court sided with PLIVA, which argued that if it were to unilaterally change its label to comply with state law as the plaintiffs in that case argued, it would violate federal law as prescribed by the FDA.

Good news for PLIVA in the Fisher case, right?  Well, it would have been, except for the fact that the plaintiffs were able to show that PLIVA’s generic label did not comply with the label on the brand name drug, and that the correct label would have warned the consumer to limit use of the drug to 12 weeks.  As the court noted, “[o]nce the FDA approved the addition of these warnings to the [brand-name] label, PLIVA has not indicated that any federal law prevented PLIVA from also adding these warnings to its generic . . . products.”

Based on this fact, the district court denied PLIVA’s motion to dismiss based on preemption.  The court did, however, base its decision to grant summary judgment for PLIVA on several causes of action on preemption analysis, including the causes of action for design defect, breach of express warranty, negligent misrepresentation, breach of undertaking a special duty, fraud and misrepresentation, and constructive fraud.

One would think that food poisoning, especially the serious E coli type, might not be that difficult to establish in litigation.  The plaintiff eats food, winds up shortly thereafter with difficult symptoms, rushes to the hospital for treatment, and to top it off, garners a diagnosis of E coli.  Relatively straightforward, right? Apparently, it’s not so simple in Florida.

In Colson v. Tampa Hotel-VEF IV Operator, Inc., 8:10-CV-9-T-30TBM, 2011 WL 5553840 (M.D. Fla. Nov. 15, 2011), the sole issue before the court on the defendant’s motion for summary judgment was causation.  Could the plaintiff, who claimed she contracted E coli after eating a tainted cheeseburger at a hotel, prove that the cheeseburger was, in fact, the culprit?

The answer: no. According to the Florida federal court, “[i]n food poisoning cases, while a plaintiff may establish causation by either direct or circumstantial evidence, courts have routinely found that a mere showing that a person became sick subsequent to eating food is insufficient.”  Instead, the plaintiff must provide some evidence that the food in question was actually contaminated or tainted, either through evidence of a food recall, evidence that others became sick after eating the same food, or that the food smelled or tasted funny at the time of consumpton.

So what did the Plaintiff argue in this case?  The court summarizes her case as follows:

Here, Plaintiff contends that she has presented sufficient evidence showing that she contracted E coli from consuming Defendants’ cheeseburger. First, she points out that she started to feel ill approximately twenty-two hours after consuming the burger, which is approximately within the accepted one to nine day incubation period for E coli. Second, Colson’s expert witness testified in his deposition that the cheeseburger was more likely than not the source from which Plaintiff contracted E coli. Asked to explain the basis of his opinion, Dr. Delaportas stated that since Colson “had a cheeseburger in the time frame of incubation, and that is more often the implicating food in these cases than not…I believe it’s more likely than not it was that cheeseburger. I cannot rule out other sources.” (Depo. Of Delaportes, 47-48). Based on this evidence, Plaintiff contends that she has presented sufficient evidence of causation in order to survive a motion for summary judgment.

The court didn’t buy it.

The plaintiff’s expert certainly didn’t help her out very much, testifying that while he believed that the cheeseburger caused her illness, he could not rule out other causes.  Thanks, doc.

In the end, without further proof of a causal link between the cheeseburger and the plaintiff’s E coli, the defendant’s motion for summary judgment was granted.

It’s late November.  Time to start thinking about Thanksgiving!  I’m a Yankee.  I grew up in New York, and not the upstate, rugged, nature-loving part of the state.  No, I grew up near New York City, the concrete-loving, keep-trees-in-their-place part.  So, I don’t quite understand the joy, the pride, the utter elation that some in my adopted hometown of Greenville, South Carolina feel when they shoot and kill their own food, even if it is their Thanksgiving turkey.  Nope, I let Butterball do all the hard work for me.

The plaintiff in Willis v. Wal-Mart Stores, Inc., — F. Supp. 2d —, No. 1-09-0095, 2011 WL 4449647 (M.D. Tenn. Sept. 26, 2011),  however, is not like me.  Apparently, he liked to go out into the pre-dawn wilderness and bring home the bacon.  Or turkey.  Or venison.  Or whatever he was hunting when on November 26, 2008, the tree stand he was sitting in collapsed and he fell to the ground.

On November 24, 2009, he filed a complaint against Wal-Mart, which sold the tree stand, and John Doe manufacturer, alleging tortious misrepresentation, defective condition, negligence,  breach of warranties, failure to instruct, strict liability, failure to inspect, and failure to warn.  A few months later the complaint was amended to add defendant Hunter’s View, Ltd. as the named manufacturer.  On October 27, 2010, the plaintiffs were allowed to amend their complaint a second time, adding Ameristep Corporation and B&B Outdoors, Inc. as manufacturers of the tree stand.  Eventually, the plaintiffs admitted that Hunter’s View did not manufacture the stand.

The plaintiffs claim at one point their counsel contacted Wal-Mart in an attempt to determine the identity of the manufacturer, but Wal-Mart didn’t cooperate.  The plaintiffs did an Internet search and found Ameristep.  Eventually, the company did provide five names of tree stand manufacturers sold at the applicable time, of which Ameristep was one.

Both Ameristep and B&B filed summary judgment motions, alleging that the case against them was barred by Tennessee’s one year statute of limitations and arguing that the plaintiffs could have determined the correct manufacturer within the statute’s time frame.

As the Court notes, “under federal law, the statute [of limitations] begins to run when plaintiffs knew or should have known of the injury which forms the basis of their claims.”  However, as the parties acknowledged in this case, the discovery rule applies to the discovery of injuries.  What is less certain is whether or not the discovery rule applies to a plaintiff’s knowledge of the identity of the proper defendant, because a split of authority exists on this very point.

After considering two separate lines of cases, the Court in this case held that the discovery rule applies only to the discovery of injuries, not the discovery of the proper defendant’s identity.  Therefore, “absent fraudulent concealment or misrepresentation . . . the statute of limitations began to run on Plaintiffs’ claims when Plaintiffs discovered their injury, not when Plaintiffs correctly identified the manufacturer of the product.”  The Court also held that the plaintiffs had a duty to investigate more diligently the identity of the defendant, and failed to do so.  Based on this reasoning, the summary judgment motion of the two manufacturers was granted.

Abnormal Use has been following the so-called “Engle progeny” cases with interest as they continue to wind their way through the courts.  On September 21, 2011, a court of appeals in Florida dealt another blow to the R.J. Reynolds Tobacco Company in R.J. Reynolds Tobacco Company v. Brown, 70 So.3d 707 (Fla. Dist. Ct. App. 2011) by upholding a jury’s award of compensatory damages to the spouse of a deceased smoker.

This is a well written decision by Judge Dorian K. Damoogian.  It provides a brief and understandable history of the Engle case line to provide context for the Brown decision, and then does the same for the specific procedural history of the Brown case.

Mr. Brown, the plaintiff’s decedent and spouse, was a long-time smoker of cigarettes manufactured by a predecessor of R.J. Reynolds (“RJR”), and he died of esophageal cancer he developed as a result of the habit.  After Engle was decertified, Mrs. Brown sued the tobacco company, relying on certain factual findings that came out of Engle to prove her case for strict liability, negligence, fraud by concealment, and civil conspiracy-fraud by concealment.

The first phase of the Brown trial was devoted to determining whether or not Mr. Brown qualified as an Engle class member, which would entitle his spouse to the aforementioned factual findings.  To prove this, Mrs. Brown had to show that her husband was addicted to RJR cigarettes containing nicotine; and, if so, was his addiction a legal cause of his death.

After the jury found both of these facts to be the case, the trial moved to phase II, in which the jury was to determine (i) whether RJR’s conduct was a legal cause of Mr. Brown’s death; (ii) comparative fault; and (iii) damages. Before opening statements, the trial court instructed the jury that because it had determined Mr. Brown to be a member of the Engle class, the following findings were binding upon it:

“One, R.J. Reynolds Tobacco Company failed to exercise the degree of care with which a reasonable cigarette manufacturer would exercise under like circumstances. Two, R.J. Reynolds Tobacco Company placed cigarettes on the market that were defective and unreasonably dangerous.”

The court advised the jury that Mrs. Brown had admitted Mr. Brown was comparatively negligent.  The jury found RJR’s negligence was a legal cause of Mr. Brown’s death; RJR’s defective and unreasonably dangerous cigarettes were a legal cause of Mr. Brown’s death; and RJR and Mr. Brown were each 50 percent responsible for Mr. Brown’s death. The jury awarded Mrs. Brown $1.2 million in compensatory damages, which the court later reduced to $600,000 based on the jury’s apportionment of fault. The trial court entered a final judgment for Mrs. Brown.

At issue in this appeal was the viability of Mrs. Brown’s negligence and strict liability claims.  As the appeals court framed it, “RJR primarily argues that the trial court gave the Engle findings overly broad preclusive effect, relieving the plaintiff of her burden to prove that RJR committed particular negligent acts in violation of a duty of care owed to Mr. Brown and to prove that the cigarettes Mr. Brown smoked contained a specific defect that injured Mr. Brown.”

To no avail.  The appeals court upheld the findings of the trial court as well as the award to Mrs. Brown.  As we have outlined in a prior post, the main dispute was a discussion between claim preclusion and issue preclusion, and the effect and implications of the differences between those two concepts.   It appears RJR was still using the same argument that failed it in the Martin case.  It didn’t work this time, either.

The appeals court made the following holdings in affirming the trial court’s decision:

A recent decision by the Kansas Supreme Court in Superior Boiler Works, Inc. v. Kimball, 259 P.3d 676 (Kan. 2011) [PDF] highlights the issue of whether or not a party can be held independently liable for the tort of spoliation.  As we all know, a court has the power to grant a wide range of sanctions and/or relief based on a spoliation charge — a charge that a party who had control over key evidence in a case lost or destroyed that evidence.  Indeed, a court can give a party a slap on the wrist, an adverse inference, or even dismiss the complaint of a plaintiff or strike the answer of a defendant.

However, some jurisdictions have adopted spoliation of evidence as an independent tort – a cause of action for spoliation.  Not all jurisdictions have done this – in fact, the Kimball Court held that Kansas has not adopted such a theory.

What’s the law in your state?  South Carolina doesn’t acknowledge spoliation as giving rise to independent actions, either.  Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001).  A good starting point for determining the law in your jurisdiction is ALR’s “Negligent Spoliation of Evidence, Interfering with Prospective Civil Action, as Actionable” by Benjamin J. Vernia, which can be found at 101 A.L.R.5th 61.

As for the spoliation we are all familiar with, some states have different rules about actionable spoliation depending on whether the destruction was negligent or willful.  A good source of information about the “Intentional spoliation of evidence, interfering with prospective civil action, as actionable” can be found at 70 A.L.R.4th 984.

It’s important to know that, when you or your client is responsible for the loss of evidence, the story may not end with a slap on the wrist–you may be facing an amended complaint or counterclaim that could open your client up to additioanl liability.

I just got a new car.  Well, new to me, but not brand new.  It’s equipped with all sorts of cool features that my old car, which my parents bought for me in college, doesn’t have.  Cubby holes everywhere.  A moonroof.  Volume and channel controls on the steering wheel.  Although it’s barely been cold enough here in Greenville, South Carolina to use them, my favorite feature is heated seats (with two settings, nonetheless).

Yes, my new car is very well equipped with features that, while certainly not critical to the car’s function, make driving it a nicer, easier experience.  There is a new car on the market, however, that puts all of these features to shame — the new Buick Verano has a headrest that is designed to accommodate ponytails!

That’s right — as reported by USA Today, the headrests in the new Buick Verano are designed so that “someone with a ponytail or other big hairdo [won’t] feel like their head is being pushed forward.”  A marvel of engineering.  Yet the design still complies with federal safety standards, which mandate how close a person’s head must be to the headrest.

This new feature made me wonder how many of the features in my car had to be worked around federal safety standards to provide the convenience that they give me.  I wonder if they regulate the temperature of my heated seats?  A quick search of the Federal Motor Vehicle Safety Standards didn’t come up with much, but I bet it exists somewhere.  After all, if a cup of hot coffee can get a company in hot water, I imagine a set of too-toasted buns could do the same.

In the wake of Steve Jobs’ death, Apple investors and fans could use a little good news.  Well, they recently received some, in the form of two rulings against Samsung. On October 18, The Sydney Morning Herald reported that a federal court in Australia had granted Apple an injunction against Samsung, preventing Samsung from selling its tablet device “Galaxy Tab 10.1” in Australia.  Apple alleged that Samsung infringed on “two of its patents relating to touch screens and the gestures that control them.”

As the article points out, this suit says a lot about the two companies, especially about Apple’s perception of the Samsung device as a true competitor to its iPad.  It also puts Samsung in a difficult position with the holiday shopping season — a season that retailers would like us all to believe starts on Labor Day this year.  For its part, Samsung’s statement in the aftermath of the ruling makes reference to the fact that it has filed a cross claim against Apple, alleging a violation of Samsung’s wireless technology patents.

Here in the United States, Samsung is also running into IP trouble with its Galaxy tab.  As reported by Reuters, after the ruling in Australia came out, “Apple then filed a request in July to bar some Samsung products from U.S. sale, including the Galaxy S 4G smartphone and the Galaxy Tab 10.1 tablet.”  A U.S. District Court judge ruled that the Galaxy infringes on Apple’s patents but, interestingly, also stated that Apple is having troubles establishing the validity of those patents.

We would have loved to be at this hearing.  Reuters’ article gives this little tidbit about that proceeding, which was undoubtedly not good news for Samsung’s attorney:

At one point during the hearing, she held one black glass tablet in each hand above her head, and asked Sullivan [Samsung’s lawyer] if she could identify which company produced which.

“Not at this distance your honor,” said Sullivan, who stood at a podium roughly ten feet away.

“Can any of Samsung’s lawyers tell me which one is Samsung and which one is Apple?” Koh asked.  A moment later, one of the lawyers supplied the right answer.

Ouch.  Not a good few days for Samsung.

In Niemela v. Imperial Manufacturing, Inc., — P.3d —, No. 20100682, 2011 WL 4485978 (Utah Ct. App. Sept. 29, 2011), the Utah Court of Appeals reconsidered a trial court’s grant of summary judgment against a postal worker who sued the manufacturer of mailboxes.  Patricia Niemela delivered mail for the United States Postal Service in a neighborhood in which mailboxes installed by Imperial Manufacturing had been installed.  According to Niemela, the mailboxes were defectively designed and manufactured, allowing them to take on water and freeze when the temperature dropped.  She was forced to use tools to break up the ice, which allegedly caused her to sustain hand injuries.  As noted by the court, Niemela brought claims for strict liability, negligence, and breach of implied warranty against the manufacturer:

In her products liability claim, Niemela alleges that the Imperial mailboxes contained design and manufacturing defects rendering them unreasonably dangerous. She seeks to demonstrate these defects by showing that the mailboxes did not conform to the 2001 USPS regulations, notwithstanding the fact that the mailboxes were designed and manufactured in 1995. Imperial responds that (1) the mailboxes must be presumed nondefective because they complied with federal regulations in effect when they were designed and manufactured, and (2) Niemela has not presented sufficient evidence to overcome this presumption.

The Court of Appeals affirmed the entry of summary judgment against Niemela and reiterated the trial court’s reasoning.  At the time the mailboxes were manufactured, they complied with the USPS regulations.   Citing a statutory presumption from the Utah Code, the appellate court observed:

There is a rebuttable presumption that a product is free from any defect or defective condition where the alleged defect in the plans or designs for the product or the methods and techniques of manufacturing, inspecting and testing the product were in conformity with government standards established for that industry which were in existence at the time the plans or designs for the product or the methods and techniques of manufacturing, inspecting and testing the product were adopted.

In order to overcome the presumption, the plaintiff must prove by a preponderance of the evidence that the product is unreasonably dangerous.  Niemela could not do so, because her bald accusations about certain aspects of the mailbox were not supported.  In the end, all she had was an allegation that she was injured, and therefore there must have been something wrong with the mailboxes.  It was not enough.

On August 9, 2011, the Eastern District of Louisiana approved the distribution of attorneys’ fees following the global settlement of litigation involving Merck’s troubled drug Vioxx in In re Vioxx Product Liability Litigation, — F.3d — , No. 2:05-MD-01657, 2011 WL 3563004 (E.D. La. Aug. 9, 2011) [PDF].    Developed and marketed to treat arthritis, menstual pain and migraine headaches, the drug was approved for sale by the Federal Drug Administration on May 20, 1999.  Merck pulled the drug off the market on September 20, 2004, after a clinical trial found that the drug increased the risk of cardiac incidents like stroke and heart attacks.

As expected, thousands of individual cases and multiple class actions filed against Merck in the aftermath of the recall.  Eventually, those cases filed in federal court were consolidated in an MDL in the Eastern District of Louisiana.  It was estimated that more than 50,000 claims were filed against Merck after 20 million patients took the medication.  After consolidated discovery, several trials commenced before the parties started talking about a global settlement.  Those talks were successful, and a Settlement Agreement was entered.   See Settlement Agreement, In re Vioxx Prods. Liab. Litig., MDL 1657 (E.D.La. Nov. 9, 2007), available at http://www.browngreer.com/vioxxsettlement.

The Settlement Agreement gave people the ability to opt-in to resolve their pending or tolled cases against Merck, and the total amount set aside for the payment of claims was $4.85 billion.  With a “b.”  Apparently, according to the August 9 order, the settlements went smoothly from a logistical standpoint:

The Settlement Program proceeded at a very rapid rate and Merck made additional payments in order to ensure that the claimants would receive funds in a timely fashion. . . . [I]n only 31 months, the parties to this MDL case were able to reach a global settlement and distribute Four Billion, Three Hundred and Fifty-three Million, One Hundred Fifty-two Thousand and Sixty-four Dollars ($4,353,152,064) to 32,886 claimants, out of a pool of 49,893 eligible and enrolled claimants. This efficiency is unprecedented in mass tort settlements of this size. It was due in large part to the ability, industry, and professionalism of the attorneys for both sides, the plan administrators, the lien administrators, the pro se curator, and the special masters.

“[A]ny attorney wishing to have their time considered for an allocation of any common benefit award” was directed to submit a three-page written affidavit to the FAC articulating their contribution, with emphasis on factors including “substantial contribution to the outcome of the litigation,” quality of work, “consistency quantum, duration, and intensity of … commitment to the litigation,” “level of partner participation,” committee membership and leadership positions, the “jurisdiction in which non-MDL common benefit work occurred,” “[a]ctivities surrounding trials of individual Vioxx claimants, including bellwether trials and non-MDL trials that impacted proceedings on a common benefit level,” participation in ongoing work for the common benefit, involvement in Vioxx litigation prior to withdrawal of Vioxx from the market or the MDL, contribution to funding of the litigation, commitment to the litigation after adverse verdicts, and any other relevant factors.

We here at Abnormal Use have blogged about a few cases involving the Crashworthiness Doctrine, otherwise known as enhanced injury cases.  As we have discussed before, the theory is that although a plaintiff might have suffered a finite number of injuries and damages because of an initial accident or occurrence, his injuries are exacerbated, or he suffers additional injuries, because of some product defect.  More recently, we discussed the concept of comparative fault as it pertains to these cases in the context of a Montana Supreme Court decision.  Read our prior post here.

This week, we were alerted by fellow blawg The Product Liability Monitor to a fight that has been occurring in Florida over this doctrine, which started when the Florida Supreme Court issued its decision in D’Amario v. Ford Motor Co., 806. So. 2d 424 (Fla. 2001) [PDF].  Like the Montana case, the dispute centers on this idea of comparative fault.  A prior post by The Product Liability Monitor summarized the facts and procedural posture of D’Amario as follows:

In D’Amario, the plaintiff was riding in a 1998 Ford Escort when it crashed into a tree.  After hitting the tree, the car burst into flames.  While the driver – who was intoxicated at the time – was killed, the plaintiff survived but suffered serious injuries.  Subsequent to the crash, the passenger’s mother sued on behalf of her son, alleging that the car’s relay switch failed to disengage the fuel pump on impact.  This, she alleged, caused the post-collision fire and the injuries to her son.  At trial, the jury was permitted to consider evidence of the driver’s negligence and thus, the issue of comparative fault.  In doing so, it found for the defendant car manufacturer.  Id. at 428.  On appeal, the Florida Supreme Court reversed.  That court held that while the principles of comparative fault may apply to the causes of the first collision, they do not apply in crashworthiness cases where the sole focus is on the secondary injury. Id. at 441-42.

Well, the Florida legislature didn’t find that to be a wise holding.  In fact, the Florida Senate introduced a bill that would entitle “judges and juries . . . to hear and consider evidence of fault relating to the cause of the initial accident when apportioning fault for injuries caused by a subsequent or secondary accident.”

Well, as reported by The Product Liability Monitor, D’Amario will now be given a neat little red flag in your next Westlaw search, because the Florida legislature has passed that bill.  The real kick in the teeth to plaintiffs?  The law applies retroactively to pending cases.