Archive for February, 2009

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Reversable Error For Trial Court to Exclude Plaintiff’s Expert on Causation

Friday, February 27th, 2009

The Second Court of Appeal for the State of California, Division One, ruled in a medical malpractice case that the trial court committed reversible error by excluding plaintiffs’ expert testimony on causation at trial.

The plaintiff’s expert in this case had been deposed but his opinion regarding causation had changed subsequent to his deposition.  Plaintiff alerted the defense to this change nearly three months prior to trial.  Defendants did not depose the expert after receiving this information.  The defendants sought a limine order limiting the trial testimony of the plaintiff’s expert to those opinions and conclusions specifically articulated at the time of his deposition.  The court granted the defense motion and at the time of trial struck the expert’s testimony regarding causation.  Based on that ruling the defense moved for nonsuit, which was granted.  Plaintiff appealed.

While there were other issues addressed on appeal the point of the case is clear: the essence and overarching principles as articulated in CCP 2034 et seq and the applicable case law require reasonable notice of an expert’s opinions and conclusions that will be offered at the time trial.  Therefore, as prudent trial lawyers have known for quite some time, if an expert’s opinions change for any reason subsequent to thier deposition, immediately alert opposing counsel of this fact and offer the expert for an additional deposition.

The opinion can be read here: Easterby et al

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Federal Motor Carrier Safety Administration (FMCSA) Fails to Reduce Fatigue-Related Incidents Involving Large Trucks

Thursday, February 26th, 2009

istock_000001489126mediumThe Insurance Institute for Highway Safety presents in its February 14, 2009 status report that the FMCSA “…has bobbed and weaved to avoid doing what Congress told it to do in 1995, which was to ‘reduce fatigue-related incidents’ involving large trucks.”

Anne McCartt, the Institute’s senior vice president for research, is quoted as saying “[t]he agency’s purpose isn’t to improve the profitability or the efficiency of the trucking industry.  The mission is supposed to be truck safety, but you wouldn’t know it from what has been going on in recent years…”

There are over 5,000 deaths a year in truck related accidents.  In 2005, one out of every five truckers surveyed reported driving more per day than before 2004.  And, the percentage of truckers who reported falling asleep while driving increased from about 13% in 2003 to 21% in 2005.

What is needed and what the Insurance Institute for Highway Safety’s report calls for is a fundamental change in the direction of the FMCSA and US Department of Transportation.  A change that reflects the mandate given to the Administration by Congress and a new focus on driver safety.

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New Research On MTBI Injuries

Thursday, February 26th, 2009

Approximately 280,000 Americans are hospitalized for traumatic brain injuries on a yearly basis. These individuals range from soldiers injured in Iraq and Afghanistan to football players and other athletes to auto accident victims.

A person suffering from a mild traumatic brain injury (MTBI), also known as a concussion, can experience disabling long-term effects including pain, sleep disruption, memory problems, attention deficits and mood swings.

Cornell University, The Universities of California at San Diego and San Francisco and the Salk Institute of San Diego along with the Washington University School of Medicine in St. Louis will participate in a new project to answer a lingering question in the field of traumatic brain injury research: conventional brain scanning techniques typically fail to reveal any permanent structural brain damage in MTBI patients, however, these injuries cause serious lasting harm?

The project is funded by a two-year, $3.2 million grant from the James S. McDonnell Foundation.

The article describing the grant and research can be found here: MTBI Research

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Chinese Drywall Class Action

Wednesday, February 25th, 2009

Drywall installed in homes in Florida may be emitting dangerous sulfuric odors exposing homeowners to respiratory problems.  A class action has been filed on behalf of homeowners experiencing problems with drywall manufactured in China, and the Consumer Product Safety Commission (CPSC) is investigating these issues.

You can read the article from Consumer Affairs here: Chinese Drywall

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Medtronic Heart Devices Failing

Tuesday, February 24th, 2009

Electrical cables used in implanted defibrillators may be failing more often than previously believed.  As reported by the New York Times a new study, which focuses on Medtronic’s Sprint Fidelis lead, found that fewer leads were still functioning than reported by the device maker and that the failure rate may get worse over time.  Medtronic has recalled thousands of Sprint Fidelis leads after discovering a potentially life threatening malfunction.  However, the Supreme Court provided the manufacturers of these devices with immunity from lawsuits last year in Riegel v. Medtronic.

The New York Times article can be read here: Heart Devices

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Court Set to Address Preemption in Wyeth

Monday, February 23rd, 2009

After a month long recess the United States Supreme Court is back in session and ready to rule in Wyeth v. Levine.  This case addresses whether or not a drug maker will be held accountable if a prescription drug causes serious harm.  The Detroit Free Press in an editorial asserts that if the Court finds in Wyeth’s favor, drug makers “…will lose an important incentive to make sure their products are safe in the first place.”  The Press refers to the defense argument that drug companies should be immune from suit after FDA approval as a “hit and run”  legal theory.  The Press equates this theory with the assertion that “…once someone gets a driver’s license, that person can’t be held legally responsible for ramming your car on the freeway and sending you to the hospital.”  The Press goes on to wisely conclude that if Wyeth wins it “…would take away the right of Americans in every state to be compensated when products that are supposed to promote health instead hurt patients.”

And in a related editorial the Washington Post presents that Chief Justice John G. Roberts Jr. owns stock in Pfizer.  And now that Pfizer plans to merge with Wyeth, the chief justice’s investment will be directly affected by the court’s decision.  Therefore, Chief Justice Roberts should recuse himself from the Wyeth decision or immediately divest from his Pfizer stock.

The decision in Wyeth along with the Court’s other preemption decisions will decide if millions of American Consumers have recourse when harmed by dangerous drugs and medical devices.  In a time when Americans are being asked to shoulder the burden for the mistakes of corporations and individuals that continue to focus on profits at the expense of safety, we desperately need accountability not immunity.

The Detroit Free Press article can be read here: Detroit Free Press

The Washington Post article can be read here: Washington Post

Read a Wall Street Journal legal blog article referencing memos by FDA officials asserting that the approval process is not sufficient to protect consumers: FDA memos

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Consumers Left in Harm’s Way by Federal Preemption

Friday, February 20th, 2009

What we are learning as investigators look into the food-safety scandal involving the Peanut Corporation of America, is that the government is ill prepared and corporations are unwilling to protect Americans from harmful even deadly products.  So, what does that leave us with – the courts right.  Wrong.

The US Supreme Court in decision after decision has enforced a view of federal preemption that can only be rationalized through the lens of tort-reform and anti-consumer ideology and not conservative jurisprudence.  Independent groups have questioned the FDA’s ability to ensure the safety of the products it regulates.  And Congress never intended for the FDA’s approval process to provide immunity for injuries caused by defective devices.  But the Supreme Court has limited lawsuits regarding defective products stripping consumers of rights that they have had for decades.  The Court’s current interpretation of federal preemption leaves millions of consumers directly in harm’s way with absolutely no recourse.

The Bush administration worked for years to reverse the longstanding federal policy regarding preemption and the FDA’s “premarket approval” process.  The impact of those efforts is now being felt in full through recent US Supreme Court and state court cases.

As with so many other crisis that must now be resolved – Iraq, Afghanistan, the economy, and America’s moral standing – the Obama administration and Congress should act swiftly and decisively to remedy this situation and provide the protections for consumers they deserve and that Congress intended.

The pertinent US Supreme Court and state court cases can be found here: Riegel v. Medtronic; Blanco v. Baxter; Jessen v. Mentor; and regarding seatbelts Williamson v. Mazda.

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Sen. Judd Gregg Withdraws Name From Consideration for Commerce Secretary

Thursday, February 12th, 2009

The Washington Post reports that Sen. Judd Gregg of New Hampshire, a Republican, has withdrawn his name from consideration as Commerce Secretary.

Read article here: Judd Gregg

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Peanut Plant Owner More Concerned With Profits Than Safety

Thursday, February 12th, 2009

According to company documents obtained by Congress and as reported by the Washington Post, when the salmonella illness began spreading last fall, the owner of the plant where the outbreak started was outraged by the cost and delays that the salmonella contamination was causing his plant.

And The Washington Times reports that according to Rep. Henry A. Waxman, Democrat from California, e-mails written by PCA President Stewart Parnell “…seem to show a company that was more concerned with its bottom line than the safety of its customers.”

See Washington Post article: WP article

See Washington Times article: WT article

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Republicans “misunderestimate” President Obama

Tuesday, February 10th, 2009

George W. Bush stated numerous times while in office that his political adversaries often  “misunderstedmated” him.  Despite his garbled syntax his sentiment was correct.  Now it appears that the Republicans are making the same mistake in their dealings with our new president.

It’s clear to everyone in the country, with the exception of Congressional Republicans, that we are facing a terrible economic crisis.  The Wall Street Journal’s economic blog, Real Time Economics, points out in a recent post that the real unemployment rate is 13.9% and not 7.6%. (see WSJ blog)  Nevertheless, Congressional Republicans decided to test the President, attempting to blindly stand in the way of the stimulus package – as if any other fight just wouldn’t do. (see Paul Begala’s commentary on Republican strategy ).

And though he may have made initial mistakes in the debate, the President has corrected himself, engaged, and appears to have won the battle.  This is evident from the most recent polling by Gallup and the Senate’s passage of the stimulus.  (see Gallup Data)

What the Republicans have done is, (1) lost a debate that they were destined to lose anyway, and (2) alerted President Obama to their strategy and approach on future legislative battles.  Having learned from his earlier mistakes the President will now be better prepared in the future – a process that Barack Obama has shown to be particularly adept at.  We can only hope that the Congressional Republican’s strategy continues to be as sound as George W. Bush’s syntax.

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