Indiana Court Rules that a Pharmacy Has No Duty to Warn.

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A man sued his pharmacy for failing to provide appropriate product information or warnings about adverse effects. The medication was prescribed by the plaintiff’s treating physician, and the Third District Indiana Court of Appeals followed the “majority” view that there was no duty to warn. Quoting from an earlier decision, the court reasoned that: “The duty to warn of hazards …

Firearms Immunity Goes Into Effect.

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Congress has enacted and the President has signed the “Protection of Lawful Commerce in Arms Act” which generally bars any civil action (or administrative proceeding) in State or Federal Court brought by any person against a seller or manufacturer of firearms or ammunition for damages or other remedies resulting from the criminal or unlawful misuse of such a product by …

Eleventh Circuit finds adverse inference insufficient where owner allows vehicle to be sold for salvage prior to inspection in crashworthiness suit.

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Following an accident in 1996, the plaintiff’s counsel sent a letter to Daimler Chrysler notifying Daimler Chrysler of the accident and of the airbag’s failure to deploy. Daimler Chrysler replied to Flury’s letter, requesting the location of the vehicle for inspection purposes. Flury’s counsel never responded to the letter. Around six months later, the vehicle was sold off by the …

California Supreme Court adopts “delayed discovery” rule to extend the statute of limitations in medical products claim.

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Brandi Fox filed a medical malpractice claim arising out of severe complications from gastric bypass surgery. During the course of discovery, the plaintiff learned that one of the devices had failed during the procedure, and attempted to add the manufacturer. The court applied a “delayed-discovery rule” under which the statute of limitations does not begin to run on a subsequent …

Maryland court finds that PPI can form the basis of a breach of express warranty claim.

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Ordinarily, under Maryland Law, the pharmacist-patient relationship does not give rise to a duty to warn of potential adverse consequences of prescribed drugs. However, when a pharmacy chooses to develop and distribute a Patient Package Insert (“PPI”), the representations can form the basis of an express warranty. (In addition, the court rejected claims of preemption by the FDA.) Rite Aid …

Manufacturer of oil drum installed in a production line could not invoke statute of repose relating to improvements to real property.

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Plaintiff was injured in 2001 by an oil drum that had been installed in 1987. The district court found that the base coating line was an improvement to real property, and that the manufacturer was thus entitled to Oklahoma’s 10-year statute of repose. The Tenth Circuit reversed, noting a general distinction between pre-fabricated mass-produced products, on the one hand, and …

District Court rejects Pfizer claims of preemption in Zoloft suicide case.

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The survivor of a man who committed suicide sued Pfizer alleging its drug Zoloft contributed to his death. Pfizer argued that the failure-to-warn claims were preempted. Rejecting the manufacturer’s claims of express preemption, Judge Rosenbaum observed that “FDA regulations explicitly permitted defendant to unilaterally strengthen its warning label at any time without regulatory pre-approval. 21 C.F.R. §§ 314.70(c)(6)(iii)(A). This particular …

Ninth Circuit holds that website intake from potential clients is not subject to disclosure.

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Granting a mandamus in an action where attorneys were compelled to turn over initial responses by clients on the Internet in suit against the makers of Paxil, the court re-affirmed the principle that the attorney-client privilege extends to initial consultations, even where the attorney and client acknowledge that no formal attorney-client relationship has been established. “Potential clients must be able …

High Court rejects preemption of state law tort claims under FIFRA.

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Peanut farmers brought claims against Dow alleging that its Strongarm pesticide stunted the growth of their peanut plants, despite the EPA-approved label which originally advertised that “Use of Strongarm is recommended in all places where peanuts are grown.” Apparently, after the plaintiffs first complained, Dow investigated, the label was subsequently changed (with approval by the EPA) to advise purchasers not …

U.S. Fifth Circuit reverses verdict under the LPLA where plaintiff failed to prove – by direct evidence, with direct and specific expert testimony – that his injuries would have been more severe had the defendant’s airbag deployed in collision.

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Driver whose head hit steering wheel during collision successfully established breach of express warranty under the LPLA. The court, however, reversed the jury award on the basis that plaintiff failed to satisfy the “proximate causation” requirement that “he sustained more severe injuries than he would have received if the air bag had deployed.” Curiously, the Court found expert testimony that …