Mark and Jan:

I want to thank you for your insightful discussion on the potentially devastating impacts of federal preemption and how it is being misapplied to undermine the basic civil and personal injury rights of people harmed by defective products and drugs.

The example of Vioxx is startling.   It is incomprehensible that people injured not only by a defective drug, but one whose studied history of causing harm was apparently kept from the FDA, could be prevented by the same agency from pursuing the drug manufacturer for those injuries.

This is clearly an area of law that merits national attention and focus as I am aware that similar efforts are under way in the motor vehicle industry to protect manufacturers from similar liability from injuries caused by roll overs.  The theory there is that if the controlling regulatory body, I believe the National Highway and Safety Commission, gives its seal of approval to a particular vehicle design, people would be prevented from pursuing recourse if the same vehicle was deemed to be defective by independent means.  Why would anybody want to remove this independent “check” and the scrutiny of independent professionals when the ultimate effect is to evolve more robust design?  There has never been a requirement of perfection, but a duty for manufacturers to constantly evaluate product design to insure what? Good old safety for the intended use of the consumer.   What could be more equitable than that ‘bright line”?  As long as you use the best available technology and concepts and make reasonable efforts to insure the safe design of your product for its intended use, your liability is limited or eliminated…but testable in a check and balance system that allows independent forces to question both the manufacturer’s and governing body’s methodology.   It is, of course, plaintiffs counsel and trial lawyers, who get a sense of something “being wrong in Denmark” that usually take the initiative, spending time, energy, effort and funds to uncover any flies in the ointment.  Preemption would presumably relieve even State’s Attorney General’s from pursuing these claims…a gutting of the civil justice system that no democratic society should be forced to tolerate.

And by the way, if you develop a drug for a particular use, like Vioxx, please make sure to share the scientific studies that showed it caused heart attacks and strokes with the regulatory body governing the decision to allow its entry into the stream of commerce.  I think most end users and physician’s prescribing the product would like to have that information available to make an informed choice….

It is inevitable, as has been the buzz around the water cooler, that someone will eventually bring suit against those persons believed to be responsible for not taking more effective measures to stop the initial and/or second round of shootings on the day of the tragedy or perhaps even prevent them all together. Whether it was by preventing the purchase of the handguns used in the shootings or the removal of the mentally ill student due to his history of behavior there are debatable decisions which may have legal implications.  Recent reports, for example, indicate there was a disconnect between the reporting of the shooter’s mental health history and any type of national registry that wold have prevented someone in his state of mind from owning a handgun.  There are also reports that campus security thought they had identified the likely suspect of the shooting as a jealous boyfriend of the first young woman who was shot in the early morning hours in her dorm. 

This maelstrom of events begs the question(s), Where does the accountability lie for the criminal acts of another? What obligations does society have and, further more, to what extent can and should an academic institution reach out to detect unstable students?  What is an accepted protocol once a student has been deemed to be dangerous?  It is logical that these questions will be answered on a case by case basis, but the dialogue has been galvanized by the recent tragedy for a general strategy to maintain “normalcy” in these situations.

From a legal perspective it all begins with the concept of duty, or what legal (not moral) obligations one has to another citizen.  You then begin to assess if any such duty exists, whether there was a breach of this duty and whether the harm that occured from such a breach was reasonably foreseeable and recognized as an injury from which one can recover. 

In the posts that follow, my goal will be to start the discussion on the scenarios that are an outgrowth from the facts before, during and after the first shooting with the sincere hope that we as a society can learn from this senseless tragedy and perhaps prevent such insanity from occuring in the future.

In the resumption of the weekly radio podcasts of Civil Action Radio Attorney Jan Schlichtmann and co-host Mark Wahlstrom bring you a podcast on the issue of pre-emption and a recent announcement from the Texas State Court that has consolidated the Vioxx cases there.

You can read an excellent summary provided by the Houston Chronicle by clicking here.

Jan takes up the issue of preemption, as it relates to these cases and the ruling by Judge Randy Wilson, and his opinion that these preemption cases, based this time on an FDA regulation written in 2004, creates the ability to toss the 888 vioxx cases pending in his court.

Listen to the podcast by clicking here, or you can just click on the Itunes icon down on our left line that looks like this happy little purple peg figure, to listen to this edition of Civil Action Radio. 

Civil Action Center Attorney Jan Schlichtmann was recently one of the featured speakers at the Mass Torts Made Perfect Conference in Las Vegas, NV. On each of the days Jan spoke on two topics of interest to trial lawyers and legal observers, with day one being about the exciting new use of 468b settlement trusts to pull together potential claimants on mass tort cases. It’s use has already been featured in the Danversport Explosion case and The Massachussets Public Shade Tree trust. In this video, available by just clicking on the TV box below, you can listen as Jan outlines his vision for using this approach in larger scale mass torts such as the existing Vioxx cases, but also in environmental claims and the looming anemia drug cases such as Procrit, Aranesp and Epogen.

In the second video podcast, shot on day two of the conference, Jan gives a stirring talk and a reminder to trial lawyers why the fight for justice is so crucial, and what surrendering the battle field to the tort reformers will lead too. If you have felt hopeless lately about the tort reform misinformation campaign, wonder why it is you got into the practice of law, or are a law student wondering what the road ahead is like, you need to watch this video of the REAL Civil Action Attorney, Jan Schlichtmann. This is a timeless talk that you can download or email to others.

Trust Will Help Users Of Procrit, Aranesp, & Epogen Determine And Resolve Claims

Civil Action attorney, Jan Schlichtmann, announced at the 3-18-07 Mass Torts Conference in Las Vegas the formation of a new Trust - The ESA Settlement Trust - a Trust for people who may have been injured by the use of the anemia drugs Procrit, Aranesp, and Epogen. 

For more information go to the Procrit/Anemia Drug Project link listed on the Navigation Bar to the left or click here. 

The ESA Settlement Trust can be found by clicking here. If you are an attorney and want to know more about how you can join with your colleagues in this innovative new project to help people who may have been harmed by this developing mass tort please click here.

Just back from the Mass Torts Made Perfect Conference in Las Vegas. The Conference was attended by a few hundred of the country’s leading lawyers who specialize in representing the many injured by the few.

Mike Pappantonio opened the conference by challenging lawyers to be “more than their practice”. He warned that we need to actively fight against the concerted attempt by the National Chamber of Commerce and other lobbyists for large corporations to limit the rights of consumers to obtain justice in the courts. Revrend Al Sharpton gave an inspiring luncheon address on the first day calling on the assembled attorneys to be “lawyers for their time”. He spoke eloquently about the lawyer’s obligation to honor the past struggles for civil rights and liberty by engaging in the present fight for individual dignity and justice so the future can be better. And Bobby Kennedy exhorted attorneys to action against the permanent devastation being wrought by corporate interests who this administration has given carte blanche access to plunder the nation’s resources.

While there I had the pleasure of interviewing several lawyers known for practicing on the cutting edge. In the next day or two you’ll be able to view the video of my interviews. You’ll hear John O’Quinn describe his latest exploits including holding retail giant Walmart accountable on charges that employee’s were involuntarily required to work certain shifts without compensation.

Rick Kuykendall discusses the Washington scene and what is happening in Congress regarding consumer rights legislation. Roberta Ashkin talks about the need to address the special problems women face in dealing with legal crisis and what steps Roberta is taking in her practice to address that issue. Robert Foote, one of the country’s more successful class action attorneys, weighs in about the need for lawyers to work together to determine the full extent and nature of the injuries suffered by the anemia drugs Procrit made by Johnson & Johnson and Aranesp and Epogen made by Amgen.

Jock Smith who heads up more than 23 law firms across the country founded by “America’s Lawyer” Johnnie Cochran honored us with an insightful and heartfelt discussion about the special role of the lawyer to promote civil rights and liberty.  If you look closely at his lapel you’ll see the engraved photograph of former Supreme Court Justice Thurgood Marshall who turned back a hundred years of injustice with the landmark Brown v Board of Education.

My interview of Revrend Sharpton is also not to be missed. He goes into the recent revelations about the connection of his family to the family of former Senator Strom Thurmond and how on a very personal level this caused him to rededicate himself to the struggle for human freedom.

There was also the important and timely announcement by me, at the Conference, of the formation of the ESA Settlement Trust for people injured by use of anemia drugs. Over the next few days I will be discussing in more detail our successful recruitment of the mass torts bar to join in the Trust project. And there was equal excitement about joining in the Public Shade Tree Trust project to protect our urban forests. I will be reporting on more developments and posting additional documents and materials regarding how you can become involved in these exciting and developing mass torts.

So stay tuned - alot more to report!