Vested Interest - Tort Briefs - September 2003 Issue

Report Shows Asbestosis Deaths on the Rise

The Work-Related Lung Disease Surveillance Report 2002, the latest edition of a compendium of information on trends in occupational respiratory diseases and exposures, reveals asbestosis deaths are steadily increasing, while coal workers’ pneumoconiosis and silicosis deaths are declining. The report is available from the U.S. Centers for Disease Control and Prevention’s (CDC) National Institute for Occupational Safety and Health (NIOSH). Notable findings from the report include: Asbestosis deaths increased from fewer than 100 in 1968 to more than 1,250 in 1999, with no apparent leveling off of this trend. Nearly 2,500 malignant mesothelioma deaths were recorded in 1999. (ATLA Law News Digest – July 17, 2003)

Statute Limiting Recovery Not Unconstitutional

In Kenkel v. Stanley Works, a customer on whom automated sliding glass doors allegedly closed as she exited the store brought claim for breach of implied warranty against manufacturer, seeking damages for injuries allegedly sustained in fall. Pursuant to jury verdict, the court entered judgment for customer. Manufacturer appealed. The Court of Appeals held that: (1) customer’s concession that doors were neither negligently designed nor negligently manufactured was not fatal to claim for breach of implied warranty; and (2) whether doors were defective and whether alleged defect was attributable to manufacturer were questions for jury; but (3) contrary to determination of trial court, statute limiting recovery of noneconomic damages in products liability actions was not unconstitutional. (ATLA Law News Digest – July 14, 2003)

Maker of Crib Agrees to Settle Lawsuit

Evenflo Co., of Ohio, agreed to settle a lawsuit with the mother of an infant that was asphyxiated when the portable crib collapsed on the 8-1/2 month-old. A hinge of the Happy Camper crib’s top rail collapsed, trapping his chest in the resulting "V-shaped" rails. The mother found out the crib maker was aware of two other deaths and many reports of collapses of its' crib even before her baby was killed. Evenflo recalled the Happy Camper crib two months after the child’s death. They sold 1.2 million cribs between 1989 and 1997. (Chicago Sun-Times – July 20, 2003)

Probe Links Ephedra to Health Problems

Many people who followed guidelines for using the herbal stimulant ephedra still reported health problems, congressional investigators found. In addition, many complaints came from users under 30, the GAO said. Marcia Crosse, the GAO’s acting director of healthcare-public health and science issues, said the reports of health problems made to drug-maker Metabolife International included heart attacks, strokes and seizures. Five deaths also were reported. Crosse also noted the FDA has received more reports of problems from taking supplements with ephedra than any other ingredient. (ATLA Law News Digest – July 25, 2003)

Tissue Banks Have Immunity From Claims

In Cyrolife, Inc. v. Superior Court, the California Court of Appeals found that tissue banks subject to regulation under the Health and Safety Code have statutory immunity from strict products liability claims relating to tissue used for therapeutic purposes. The court also held that a tissue bank is a "health dispensary" and therefore is a "healthcare provider," within the meaning of a statute requiring leave of court to amend a complaint to assert a punitive damages claim in a professional negligence action against a healthcare provider. (ATLA Law News Digest – July 31, 2003)

Judge Finds Against Federal Government for Boy’s Damage

A federal judge in East St. Louis returned an award to the mother of a 5-year-old boy who suffers severe brain damage from a difficult birth. The doctor was not named in the suit. He was not board certified in obstetrics and tried to use a vacuum extractor 15 times before performing a C-section. The doctor was considered a federal employee because his position was subsidized. (AP – August 1, 2003)

Doctrine of "Loss of Chance" is Cognizable in Medical Malpractice Action

In McMackin v. Johnson County Healthcare Center, the Wyoming Supreme Court has held that the doctrine of "loss of chance," i.e., that a physician’s failure to evaluate and treat a patient caused a patient to lose the chance for survival, is cognizable in Wyoming. To that end, the Court reversed the trial court’s grant of summary judgment to the defendant hospital and healthcare professionals, finding that there was a genuine issue of material fact as to whether the alleged negligence of the defendants in treating the patient, who suffered a fatal stroke, resulted in a "loss of chance" for survival or for a better outcome. The Court further stated that instructions to the jury with respect to damages in an action in which the "loss of chance" doctrine is asserted must be tailored to each case based on its peculiar facts. (ATLA Law News Digest – August 7, 2003)

Ex-P.O.W.’S Won’t Get Part of Seized Iraq Assets

A federal judge in Washington ruled that 17 former prisoners of war might not collect the hundreds of millions of dollars they won in a suit against Iraq. The American ex-prisoners, who were tortured by their Iraqi captors in the first war in the Persian Gulf in 1991, had sought the money from frozen Iraqi bank accounts that the United States seized in March. The government expressed sympathy for what the plaintiffs had endured but opposed the collection effort, saying the money was needed to rebuild Iraq. Judge Richard W. Roberts, who awarded almost $1 billion to the service members and their families this month, ruled with evident reluctance. "The secretary’s position that the P.O.W.’s are unable to recover any portion of their judgment, despite their sacrifice in the service of their country, seems extreme," Judge Roberts wrote, referring to Treasury Secretary John W. Snow. But the judge said the government had the better legal argument. (ATLA Law News Digest – August 7, 2003)

Senate Approves Treaty Updating Limits on Airlines’ Liability

The Senate approved a treaty that will give the families of passengers killed on international flights the same rights to recover damages as those on domestic flights. The move sets aside a 70-year-old system of liability limits and generally gives Americans the right to sue in this country even if the accident occurred elsewhere. The new rules will replace the Warsaw Convention of 1929, a document approved by the President of Poland and the kings of Italy and Egypt and partly updated in the years since. The new rules will guarantee relatives of people killed in aviation accidents compensation of $141,000 without regard to the airline’s fault, and more unless the airline can prove another party was at fault. The Warsaw limit was $75,000, although in 1996, under prodding from the United States Department of Transportation, major American carriers and many foreign carriers serving this country agreed to waive that limit. (ATLA Law News Digest – August 7, 2003)

Internal GM Documents Used in Seatback Failure Case

Although a Portland, Maine, jury recently deadlocked 4-4 over whether a General Motors seatback was defective, the case could have far-ranging repercussions, because the plaintiff’s lawyer was able to introduce internal GM documents that suggest the company knew its seats were not safe. The documents included a series of memos, including parts of a company study of all litigation against GM over seatbacks and problems with their safety. The attorney who represented the plaintiff, said that the documents make clear that GM engineers had designed safer seats, which were more protective on impact, but that the company chose not to put them in all of their vehicles, because such a wholesale change would call too much attention to the fact that the old seats were not as safe. The attorney said the documents demonstrated the "frustration of engineers who developed safer seatbacks and couldn’t get them into vehicles as quickly as they wanted to." According to the attorney, despite the documents, the jurors in the Maine case couldn’t reach a verdict because of a factual dispute over the nature of the crash that injured the plaintiff. (ATLA Law News Digest – August 7, 2003)

Any Error in Allowing Expert to Testify on Whether Patient Suffered From Depression was Not Prejudicial

In Slutzki v. Grabenstetter, the Iowa Court of Appeals held that error, if any, in allowing the physician’s medical expert to testify concerning whether the patient suffered from depression, and, if so, whether the depression was proximately caused by her hysterectomy and ensuing complications, was not prejudicial in patient’s medical malpractice action. The jury found in favor of the physician on fault and did not reach the questions addressed by the expert’s testimony, the existence and proximate causation of depression. (ATLA Law News Digest – August 14, 2003)

Food Industry Cooks Up Ways to Stymie Suits

The restaurant industry is supporting a bill in Congress called the Personal Responsibility in Food Consumption Act. Public health watchdogs such as the Public Health Advocacy Institute, hosted a conference at Northeastern University in Boston in June called "Legal Approaches to the Obesity Epidemic." It was received by the press as a planning session for class-action lawsuits. While none of the estimated seven obesity lawsuits nationwide has gained a major victory for plaintiffs, the threat of legal action may prompt the food industry to make changes. Last month, Applebee’s restaurant chain announced a licensing agreement with Weight Watchers International to feature an assortment of Weight Watchers-branded menu items. Northfield-based Kraft - which makes Oreos, Lunchables and other snacks - announced it would launch an anti-obesity initiative that includes reducing portion sizes, providing more nutritional information and establishing new guidelines for marketing to children. (ATLA Law News Digest – August 21, 2003)