Vested Interest - Tort Briefs - July 2003 Issue

FTC Doesn’t Preempt Tobacco Suit Under RICO

A U.S. District judge kept the Justice Department’s long-running suit against the tobacco industry alive by ruling on May 23 that the Federal Trade Commission’s authority over the industry doesn’t bar the suit. The judge wrote that the RICO Act doesn’t inherently conflict with those powers. The lawsuit alleges the industry has for decades concealed information that nicotine is addictive and that smoking causes disease. The government also claims the companies aimed ads at children to recruit new smokers. (Liability & Insurance Week - May 27, 2003)

Dentists File Class-Action Suit Against Insurers

The American Dental Association and individual dentists filed a class-action lawsuit under the RICO Act against SIGNA, SIGNA Dental Health, MetLife, Metropolitan Life Insurance Co., Connecticut General Life Insurance Co. and Mutual of Omaha Insurance Co. The suit, filed in U.S. District Court for the Southern District of Florida in Miami, charges the insurers engaged in a conspiracy and common course of fraudulent conduct with third parties to delay, deny or limit reimbursement payments to dentists in violation of contracts with the insurers’ managed-care plans. (Liability & Insurance Week - May 27, 2003)

Arkansas Jury Awards Man in Tobacco Suit

An Arkansas jury awarded a man damages, including punitive damages, against Brown & Williamson Tobacco Co. A federal court concluded the company’s cigarettes were defective and contributed to his wife’s death. Jurors deliberated for three days before agreeing B&W’s product is defective because it is unreasonably dangerous by design. They found in the company’s favor on a claim cigarettes once had inadequate warning labels. (Liability & Insurance Week - May 27, 2003)

Diving Pool Victim Receives Award

A California jury returned an award for a quadriplegic man whose dreams of a professional diving career were cut short by a pool accident. The 20-year-old suffered irreparable spinal cord injuries after he dove into a pool and landed on a synchronized swimmer. His attorney said the pool was negligent in allowing the city pool to be used by a diving team and a synchronized swimming team at the same time. He also said the shared use between the divers and the synchronized swim team was dangerous, because swimmers were allowed to swim laps through the diving area. The jury agreed. The city still allows the shared use. The attorney said he expects the verdict to be heard nationwide and will help regulate how pools should be shared safely. (ATLA Law News Digest – May 29, 2003)

Discharging Patient Did Not Violate EMTALA’S Stabilization Requirement

In Dollard v. Allen, the United States District Court in Wyoming, ruled that a hospital did not violate the stabilization-before-transfer requirement of the Emergency Medical Treatment and Active Labor Act (EMTALA) in discharging a low back pain patient who had an undetected emergency medical condition. First, the evidence did not show that the hospital had actual knowledge that the patient was suffering from the extremely rare neurological disorder of cauda equina syndrome. Second, the stabilization requirement did not apply to individuals, like the patient, who had been admitted to the hospital for inpatient care. (ATLA Law News Digest – June 5, 2003)

Judge Orders Ephedra Maker to Pay Back Profits

The makers of the ephedra supplement that was implicated in the death of a Baltimore Orioles pitcher must return their profits on sales of the substance in California, a judge ruled in a false-advertising suit in San Diego. The company issued a statement saying it would appeal. The class-action suit accused Cytodyne Technologies of Manasquan, New Jersey, of deceiving consumers with claims of uniquely effective and substantial weight loss. The verdict represents all of the profit the company made in California from 1997 to 2001 on its ephedra product, Xenadrine RFA-1. The San Diego Superior Court judge found that Cytodyne’s advertising was not supported by scientific research. It systematically excluded, misstated and overstated scientific findings and pushed researchers it commissioned to cast findings in the most favorable light, the judge ruled. (ATLA Law News Digest – June 5, 2003)

U.S. Supreme Court Allows Agent Orange Suit

A deadlocked Supreme Court permitted Vietnam veterans who believe their recently discovered illnesses were caused by the herbicide Agent Orange to take the compound’s manufacturers to court despite a 1985 out-of-court settlement between the companies and veterans. The court’s decision gave a veteran, who discovered in 1998 that he had a deadly form of cancer, a chance to argue that he was not adequately represented in the 1985 settlement negotiations. It created a $180 million fund, financed by the chemical companies, to pay veterans who said they got diseases from Agent Orange. By 1997, all the money had been paid out. (ATLA Law News Digest – June 12, 2003)

Doctor’s Email Threats Lead to Terror Charges

A New Jersey doctor is facing criminal charges for sending death threats to two reporters who wrote a story about doctors protesting malpractice insurance rates. The doctor, a pulmonary specialist, admitted sending the emails under the title "Yougonna Die." He is charged with two counts of making terroristic threats. The first threat was emailed to the staff reporters on Feb. 10, the day their story about doctors picketing Trenton appeared in the newspaper. "I will track both of you down and seek vengeance," the email said. "You will regret ever having written your biased articles." The reporters received a second email on Feb. 16 from the same source. "DEATH SHALL BE IMMINENT," it said in upper-case letters. An investigation led to the doctor’s arrest on April 11. (ATLA Law News Digest – June 12, 2003)

Sick Baby Burned at Duke Hospital

An ailing newborn was burned over 5 percent of its' body after a fire erupted during a medical procedure in Duke Hospital’s Pediatric Intensive Care Unit. The baby had been suffering from an upper-respiratory illness. Duke officials said the infant suffered first-, second- and third-degree burns over various parts of the body. Paper draped over the baby, then fabric bedding and a blanket ignited. The hospital’s initial investigation has not shown what caused the fire. A health professional says equipment usually isn’t the cause of fires during medical procedures: staff error is. (ATLA Law News Digest – June 12, 2003)