April 23rd, 2007

Second Circuit Tosses Rescue Workers’ 9/11 Suit

Five rescue workers who responded to the September 11th attacks at the World Trade Center, and who brought action against Christine Whitman (then the head of the Environmental Protection Agency) have had the dismissal of their case affirmed.

The suit had alleged that various public officials had issued reassuring — and knowingly false — announcements about the air quality in lower Manhattan; that the plaintiffs therefore believed it was safe to work at the site without needed respiratory protection, and did; and that the defendants’ conduct violated plaintiffs’ right to substantive due process.

The appeals court affirmed the dismissal of the case because the complaint’s allegations did not “shock the conscience even if the defendants acted with deliberate indifference.” The court, moreover, said that when agency officials decided how to reconcile competing governmental obligations in the face of disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability.

The ruling by the Second Circuit Court of Appeals was issued late last week, and is available at the Second Circuit website (Lombardi v. Whitman).

April 20th, 2007

Texas Judge Dismisses Vioxx Claims

Last week I wrote that a Texas judge anticipated dismissing 1,000 Vioxx claims. The dismissal was not on the merits, but based on an FDA regulation that asserts it can preempt state law, and grant immunity to companies whose drugs have been FDA approved. This is claimed despite the fact that Congress has passed no such law.

As per a report today (Harris Martin Publishing), the judge has now signed an order to that effect. My own check of the court’s website, however, does not show it to be online at this point.

This time of regulatory tort “reform” is a far more subtle and insidious way of protecting big business than those that advocate caps for those with catastrophic injuries.

Addendum: 4/22/07 — A copy of the decision is now available here.
You can find stories at Drug and Device Law (the most detailed coverage), WSJ Law Blog, and Point of Law.

April 12th, 2007

Texas Judge to Toss Out 1,000 Vioxx Suits

The Wall Street Journal is reporting that a Texas judge is about to toss out 1,000 Vioxx lawsuits, under a Merck claim that an FDA ruling in February 2006 preempts lawsuits in state court. The court’s ruling is expected next week.

That FDA rule says the agency’s approval process trumps state law in how manufacturers of health-care products must warn consumers about their potential risks.

This, in my opinion, is anything but a slam dunk on appeal, as the FDA isn’t Congress and may not have the authority to create such a preemption rule. If Congress wanted to create such a preemption statute as they have for other things (such as medical devices) it could have done so. But it has decided not to.

While some attempts to preempt state law in this fashion have succeeded, others have failed. When the ruling is published next week, expect much talk in the legal blogosphere on the subject, and a visit one day to the U.S. Supreme Court.

WSJ, by Heather Won Tesoriero (subscription needed $): Ruling in Texas Vioxx Case Could Be a Boon for Merck

Addendum 4/13/07 – WSJ Health Blog now has the story without need for subscription.

Addendum 2.0 — 4/13/07 — Closing the courthouse doors by regulation instead of legislation is the type of tort “reform” that Walter Olson discussed at Point of Law on March 1, 2007: Liability reform’s new direction: procedure

April 9th, 2007

Trip And Fall Dismissed Because Defect Was "Trivial"

Trip and fall cases are interesting because of two competing defenses:

1. That the defect was so small as to be “trivial”; and
2. That the defect was so large as to be “open and obvious.”

In this case, the defendant prevails on the first of the two defenses:

The plaintiff asserts that there was a height differential of 5/8 of an inch between the two surfaces, and contends that this height differential caused the accident.

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury.” However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip. In this case, the defendants made a prima facie showing, through the plaintiff’s testimony and the photographs identified by her as accurately depicting the condition of the curb cut at the time of the accident, that the alleged defect did not constitute a trap or nuisance and was merely a trivial defect which was not actionable as a matter of law. The evidence which the plaintiffs submitted in opposition to this showing failed to raise a triable issue of fact.

If a defendant does not prevail on one, a claimant should expect the defendant will then pursue the other.

The case is: Joseph v Villages at Huntington Home Owners Assn., Inc.

April 2nd, 2007

Slip And Fall On Ice/Slush — Case Dismissed

This New York slip and fall case is one that should never have been taken by the attorney:

While attempting to disembark a bus owned and operated by the defendants, the plaintiff slipped on a step which she described as wet and slushy, and fell from the bus. It is undisputed that a heavy snow had fallen several days earlier and that passengers were tracking snow, slush, and water from the ground onto the bus.

In trying to establish liability against the bus company, however, the court ruled that:

under the weather conditions which [sic] existed at the time of the accident, it would be unreasonable to expect the defendants to constantly clean the floors of their buses.

My own feeling is that juries don’t like such cases, and great care should be taken when selecting them. If a sidewalk trap has existed for years it is one thing, but sloppy/slushy conditions bring with it risks that are sometimes unreasonable to shift to another.

On the flip side, an interesting approach to the issue might have been to discuss the flooring of the steps, and the potential use of outdoor carpets or other materials to make the steps slip-resistant in adverse conditions (the way office buildings lay out the mats) but there was no such discussion in the record.

The case is McKenizie v. County of Westchester, from New York’s Appellate Division, Second Department.