Vested Interest - Tort Briefs - June 2005 Issue

Family Medical Leave Suit Survives Motion to Dismiss

A federal judge has refused to dismiss a suit under the Family and Medical Leave Act brought by a former corporate vice president who claims he was told on the day he returned from a three-month leave that his job had been eliminated in a "restructuring" and that his new position came with a $20,000 pay cut. The judge found that a jury must decide two key factual disputes- whether a true restructuring ever took place and, if it did, whether it was truly planned prior to the plaintiff’s FMLA leave. (ATLA Law News Digest – May 12, 2005)

BB Gun Manufacturer No Duty to Warn

The Supreme Court in Alabama ruled that a BB gun manufacturer and supplier did not have the duty to warn a mother who purchased a BB gun for her seven-year-old son of the capacity of the gun to kill a person, in an action brought by the executrix of a child who was shot and killed when the son discharged the gun. The dangerous propensity of the gun was open and obvious, despite the mother’s claim that she did not know that the gun had the capacity to kill a person. The son, and two of his siblings all testified that their mother had told them that the gun could kill someone, and therefore, the son had subjective knowledge of the gun’s dangerous propensities. (ATLA Law News Digest – May 26, 2005)

Federal Law Did Not Preempt

In Cartwright v. Pfizer, Inc., the United States District Court ruled that the federal law governing warning labels on drugs approved by the FDA provided a minimal standard of conduct. Thus, it did not preempt a state law claim that a pharmaceutical manufacturer had failed to adequately warn of the danger of suicide while taking the prescription drug Zoloft. State law required manufacturers to provide warnings regarding reasonably foreseeable or scientifically discoverable dangers. (ATLA Law News Digest – May 26, 2005)