Drug & Device News

Choice of Law Is Crucial to Damages

In a case involving a woman who died after taking Tylenol, the parties are battling in the U.S. District Court for the Eastern District of Pennsylvania over which state's law should apply in the question of punitive damages: Should it be New Jersey's, Alabama's or Pennsylvania's? The answer to that question will determine whether recovery of punitive damages is even possible.

The case began when the plaintiff's adult sister died of liver failure in 2010 in Alabama after taking the recommended dose of Tylenol. The plaintiff brought suit, claiming that the manufacturer, McNeil Consumer Healthcare, knew that the drug could cause liver damage even if taken at the recommended dosage.

The parties agreed that the substantive issues in the case should be governed by Alabama law. McNeil argues, however, that New Jersey law ' which prohibits the award of punitive damages when harm is caused by a pharmaceutical product that has been approved by the Federal Food and Drug Administration (FDA) ' should govern on the issue of punitive damages. Alabama law places no statutory limit on the awarding of punitive damages.

According to the defense's brief to the court, “The application of Alabama wrongful death law would impair New Jersey's policy interest in (a) limiting recovery for wrongful death to pecuniary loss and (b) protecting manufacturers of useful pharmaceutical products by prohibiting punitive damages in cases involving FDA-approved or 'generally recognized as safe and effective' products.” R. Clay Milling, a lawyer for the plaintiffs in the Tylenol MDL from the Atlanta firm of Henry Spiegel Milling, says that “[w]hat the defense is saying is, we want to apply Alabama law to everything, but we really don't like Alabama law” for the wrongful-death claim. In other words, according to Milling, “The defense is trying to split the baby.” Another attorney for the plaintiffs, Laurence Berman of Levin, Fishbein, Sedran & Berman in Philadelphia, has also opined that if Alabama law does not control, Pennsylvania law should, because McNeil's plant is in Pennsylvania, all the relevant documents necessary to the case are in Pennsylvania, and almost all of the witnesses are in that state as well.

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Despite Federal Law, DOJ Vows to Continue Marijuana Prosecutions

The federal spending bill passed by Congress in December 2014 contained a little-discussed provision that is now causing new controversy between the Department of Justice (DOJ) on the one hand, and defendants and their legal counselors on the other. Named for its Congressional sponsors, the Rohrabacher-Farr amendment made it illegal for the federal government to spend any funds to prosecute users or sellers of medical marijuana in those states that have legalized such use, as long as they are in compliance with state law. However, in a statement given to The Los Angeles Times for an article published there on April 2, DOJ spokesman Patrick Rodenbush said the Justice Department has interpreted the law as merely a prohibition on its interfering with the states in carrying out their own medical marijuana laws; as for individuals and businesses that use, manufacture or sell marijuana, the DOJ still reserves the right and intends to prosecute. This announcement brought a rebuke from the amendment's authors, Dana Rohrabacher (D-Ca.) and Sam Farr (D-Ca.), in a letter sent to U.S. Attorney General Eric Holder on April 8, stating: “As the authors of the provision in question, we write to inform you that (DOJ's) interpretation of our amendment is emphatically wrong.” Further, the letter writers asserted that few things could impede the right of states to carry out their own laws concerning medical marijuana more than prosecuting those states' law-abiding citizens who are acting in accordance with those laws.

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Choice of Law Is Crucial to Damages

In a case involving a woman who died after taking Tylenol, the parties are battling in the U.S. District Court for the Eastern District of Pennsylvania over which state's law should apply in the question of punitive damages: Should it be New Jersey's, Alabama's or Pennsylvania's? The answer to that question will determine whether recovery of punitive damages is even possible.

The case began when the plaintiff's adult sister died of liver failure in 2010 in Alabama after taking the recommended dose of Tylenol. The plaintiff brought suit, claiming that the manufacturer, McNeil Consumer Healthcare, knew that the drug could cause liver damage even if taken at the recommended dosage.

The parties agreed that the substantive issues in the case should be governed by Alabama law. McNeil argues, however, that New Jersey law ' which prohibits the award of punitive damages when harm is caused by a pharmaceutical product that has been approved by the Federal Food and Drug Administration (FDA) ' should govern on the issue of punitive damages. Alabama law places no statutory limit on the awarding of punitive damages.

According to the defense's brief to the court, “The application of Alabama wrongful death law would impair New Jersey's policy interest in (a) limiting recovery for wrongful death to pecuniary loss and (b) protecting manufacturers of useful pharmaceutical products by prohibiting punitive damages in cases involving FDA-approved or 'generally recognized as safe and effective' products.” R. Clay Milling, a lawyer for the plaintiffs in the Tylenol MDL from the Atlanta firm of Henry Spiegel Milling, says that “[w]hat the defense is saying is, we want to apply Alabama law to everything, but we really don't like Alabama law” for the wrongful-death claim. In other words, according to Milling, “The defense is trying to split the baby.” Another attorney for the plaintiffs, Laurence Berman of Levin, Fishbein, Sedran & Berman in Philadelphia, has also opined that if Alabama law does not control, Pennsylvania law should, because McNeil's plant is in Pennsylvania, all the relevant documents necessary to the case are in Pennsylvania, and almost all of the witnesses are in that state as well.

BIO HERE