They are called OSIs – other similar incidents. Plaintiffs try to get them admitted into evidence in products liability cases to show evidence of defect and knowledge of defect. The incidents must be “substantially similar” and there is (almost) always a fight over what falls within that catergory.
Here is a recent opinion from the Eighth Circuit that upheld the admissibility of OSIs in a products case involving use of a rachet system on a motor vehicle carrier.
What do you do when you represent people who have been exposed to a dangerous substance but to date have not experienced an injury? Some lawyers have brought what is known as a medical monitoring claim, asking that the defendant be required to pay money to monitor the health of the plaintiff to identify and then treat health problems related to the exposure.
Plaintiffs in that situation are in a tough spot. If they wait until they suffer an “injury” there will be an argument that a statute of limitations or a statute of repose has run. If they file suit too early the defendant argues that the plaintiffs have not been injured and therefore do not have standing to bring a claim.
What is the state of the law on this issue? The Supreme Court of Michigan has just ruled that plaintiffs may not bring this type of claim. In Henry v. The Dow Chemical Corp. plaintiffs claimed that they were exposed to dioxin and needed medical monitoring. Dioxin is known to cause cancer, liver disease, and birth defects. The State of Michigan determined that the most likely source of the contamination was Dow’s Midland plant.
I wrote yesterday that a trial judge was going to permit the pathologist who performed the autopsy of the plaintiff’s decedent in the Vioxx case to testify.
How important is that testimony to the plaintiff? Well, a good guage of that is that Merck has appealed the decision in the middle of the trial. The court of appeals denied the request for review, and Merck appealed to the Texas Supreme Court.
How can Merck claim surprise when the doctor was on its witness list?
A New Jersey state court trial judge has certified a nationwide class action on behalf of unions and other third-party payors of health claims in a lawsuit alleging that the companies would not have paid for Vioxx had they been warned of the dangers of it. The suit is brought under the NJ Consumer Protection Act. Merck is headquartered in New Jersey.
The judge wrote that “there are significant factual and legal issues common to all class members to make adjudication through class action fair and efficient. Having each individual class member attempt to litigate their claims (separately) would result in needless duplicative discovery, undue expense to the parties as well as an undue burden on judicial economy.”
Although the merits of the litigation have not been decided, the right to bring the case as a class action is a major victory for the plaintiffs.
One of the big fights in the Vioxx trial underway in Texas is the cause of death. The Plaintiff has been granted permission to have the pathologist who did the autopsy testify – and she is giving great testimony that supports the plaintiff.
Here is the complete article:
KRISTEN HAYS
Associated Press
Boston Scientific makes stents. “Stents are tiny wire-mesh tubes used to prop open heart arteries after fatty deposits have been cleared away. The devices are inserted through blood vessels and deployed by a tiny balloon that is inflated, pushing the stent in place.” The company has had a problem with its Taxus line of stents, and did a voluntary recall this year.
An article in a frecent edition of the Wall Street Journal reported data from the FDA that at least 45 cases where it was reported that there were difficulties with balloon deflation and 86 cases in which balloons became stuck and were difficult to remove from patients. The problems resulted in three deaths and several injuries, the paper reported.
The FDA plans to take no action.
Here is an update on the first Vioxx trial, as reported by the New York Times.
Guidant has shared more information about problems with some of its pacemakers. A news article reports that “the Indianapolis-based company, which last month recalled almost 109,000 defibrillators, released a warning that said a sealing component in the pacemakers had degraded in some cases, resulting in higher-than-normal moisture in the devices and possible malfunction.”
The models at issue are: Pulsar Max, Pulsar, Discovery, Meridian, Pulsar Max II, Discovery II, Virtus Plus II, Intelis II and Contak TR. The devices have not been implanted in patients in about four years.
There are about 18,000 of the pacemakers still implanted in patients. About 88,000 of the defibrillators remain in patients.
In Tennessee, a product that complies with government standards is presumed not to be defective or unreasonably dangerous.
So, you can understand why those of us who represent consumers injured by products are more than a little concerned by this news report. The NYT reports that “[f]orty-four government scientists have violated ethics rules on collaborating with pharmaceutical companies….”
Some of the scientists may have violated criminal laws.
Lots of folks use Duragesic Patchs for pain control. Now, the FDA is warning that the patch presents a risk of death. Duragesic is the brand name of the generic product known as fentanyl.
The directions for using the fentanyl skin patch must be followed exactly to prevent death or other serious side effects from overdosing with fentanyl, according to the FDA.
These are the signs of an overdose: “trouble breathing or shallow breathing; tiredness, extreme sleepiness, or sedation; inability to think, talk, or walk normally; and feeling faint, dizzy, or confused. If these signs occur, patients or their caregivers should get medical attention right away.”
Day on Torts