Articles Posted in Products Liability

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Journal of the American Medical Association reports on a study suggesting that doctors may want to prescribe stroke victims antidepressants right away. Researchers in Iowa gave low doses of the SSRI antidepressant Lexapro to stroke patients. The patients on the drug were 4.5 times less likely to develop depression than patients given a placebo.

If this study is replicated, the results are astonishing given the rather limited efficacy of SSRIs generally. Similar findings may lead to the use of the much-maligned SSRI antidepressants despite the criticism of recent years. Almost a quarter of a million Americans develop depression within two years after having a stroke. As is often the case, depression affects outcome: stroke patients with depression recover less quickly and are more likely to die.

SSRIs, such as Prozac, Lexapro, Cipralex, Esertia, and Zoloft, have a lot of troubling side effects. While it took almost a decade for the labeling to reflect the risks, SSRIs cause an increased risk of suicidal thoughts and actions. The New England Journal of Medicine and other medical journals have also reported that some SSRI antidepressants are linked to an increased risk of persistent pulmonary hypertension (PPHN) in children whose mothers used SSRIs after the 20th week of gestation. SSRIs have also been linked to heart, cranial, lung, and abdominal defects. If all of that is not enough, extreme reactions have also been reported in patients when they stop taking some SSRIs.

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Overlawyered has a blog post today about the reports of a high school pitcher suing his school district because he wore out his arm throwing 140 pitches in a single game. Here is the gist of the story from the Seattle Times: Seven years ago, Plaintiff was pitching against a rival school. He had no plans to take himself out of the game. In the eighth inning his mother, assuming you believe her story, told coach, “He’s at 117 pitches. He’s done.” (How many mothers out there are keeping exact pitch counts?) You know the rest of the story. The Plaintiff hurts his arm. He thinks he was the next coming of Roger Clemens… better make that Greg Maddux… and files suit claiming the coach should have pulled him out of the game.

Overlawyered and the Maryland Lawyer Blog agree that the possibility of a lawsuit causes people to act differently than they otherwise would. Where we disagree is whether, on balance, this is a good thing for society. For example, football coaches now know that depriving kids of water during practice is a bad thing and their doing so may expose the school to liability. In this area I think coaches already have proper incentive to do the right thing and this will only serve to exaggerate the risk of a “pitch count” lawsuit. Even if this is what I believe is the first lawsuit of its kind in this country. Obviously every baseball coach around the country is going to be talking about this and many are going to become worried about pitch counts.

Awareness of valid lawsuits properly encourages people (including doctors) to proceed with caution and to consider the risks that may cause harm. Frivolous lawsuits like this one have the opposite effect and are going to have some coaches – a small minority but still some – overreacting and limiting kids to ridiculously low pitch counts. But just as free speech requires us to tolerate hate speech, the search for justice requires us to tolerate some level of frivolous lawsuits. Whatever inertia this country has towards tort reform, it comes in no small measure from mainstream media and Internet reports (many of which are simply false) of ridiculous lawsuits.

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A recent editorial in Pacing and Clinical Electrophysiology reports findings of perforations in St. Jude Riata defibrillator leads. Coming on the heels of the recent Medtronic defibrillator lead recall, this editorial raises additional manufacturing concerns about some of St. Jude’s newer and thinner leads. These perforations, coupled with their late presentation, pose a duel threat to patients. The lead perforation sometimes is not caught until it is “well beyond the right ventricular free wall” and protruding centimeters into surrounding tissue. This protrusion can lead to complications which can cause a lot of complications, including sudden death.

St. Jude has responded to these concerns by citing product analysis data showing that the perforation rate of St. Jude’s Riata lead wires is lower than the rates reported by similar leads. But, honestly, on the heals of the Medtronic recall, my confidence in reports from medical device companies about their safety and efficacy data is about the same as my confidence in Brittany Spears’ parenting skills.

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The Minnesota Supreme Court released an opinion last week, stating that an exception to Minnesota’s seat belt gag rule permitted a three-year-old child to sue his parents for not properly buckling his seat belt. The suit contended that the parents failed to discover and remove a coin from the buckle mechanism of the child’s car seat. His grandparents brought the suit on behalf of the child, presumably with their consent and encouragement.

The case’s facts are unimaginable. This boy’s seatbelt came off when an uninsured motorist struck his father’s SUV. Their SUV flipped and the boy’s car seat became unbuckled. The boy is now a quadriplegic confined to a wheelchair and will require 24-hour care for the rest of his life. It is difficult to conjure up a greater tragedy.

Minnesota has a law that makes the Plaintiff’s failure to wear a seat belt inadmissible at trial. As I have written in the past, Maryland has a similar law on seat belt use admissibility at trial. A claim was brought and settled against the parents and the manufacturer of the restraint system, based on the Minnesota seat belt statute’s gag rule allowing claims for “an action…for defectively designed, manufactured, installed, or operating seat belt restraint systems.” Progressive Insurance made the argument that the plain meaning language of the seat belt gag rule statute clarified that the exception was intended to apply to manufacturers of car seats or seat belts, and not to those who may have negligently buckled or maintained a seat belt.

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