California Attorney Tom Martin’s Law Blog

Six months ago, dozens of serious injuries prompted the recall of nearly a million Hasbro Easy-Bake Ovens.

Since then, according to the Consumer Product Safety Commission, only a small number of ovens have been returned. Hasbro has received reports of nearly 250 more incidents of children getting their hands or fingers caught in the ovens: 77 incidents involved burns, including 16 second- and third-degree burns, 1 burn required the partial amputation of a 5-year-old girl’s finger.

A second recall has been issued.

The latest CPSC alert says the recalled models are purple and pink model number 65805. They were made in China and sold after May 2006 at Toys “R” Us, Wal-Mart, Target and other major retailers.

Consumers are urged to take the products away from children immediately. The ovens may be returned for a voucher that can be used to get a Hasbro product of equal value — about $25. More specific information is available on Hasbro’s website.

The California Supreme Court, in a unanimous decision, this past Thursday made it possible for people who become ill from smoking to once again obtain justice from tobacco companies, rejecting a 4 year-old federal court decision that virtually halted all smoker lawsuits in the state.

The 9th Circuit of the U.S. Court of Appeals had ruled that smokers must sue once they discover, or should have discovered, that they are addicted to cigarettes. The federal decision in effect ruled out most smokers’ lawsuits in California, since cigarette-related diseases usually manifest themselves years after smokers have become addicted.

Because the 9th Circuit litigation involved a question of California law, the California Supreme Court, the final word on what state laws mean, took up the matter. And in its decision Thursday, it rejected the 9th Circuit’s interpretation.

In the Opinion (Grisham v. Philip Morris U.S.A.), lead by the Honorable Justice Carlos Moreno, the California Supreme Court stated:

We do not believe that the Legislature, which repealed the tobacco immunity statute [], intended or intends for the repealed statute to be reincarnated, as it were, as a presumption of knowledge about the hazards of smoking that serves to disqualify tobacco lawsuits as time-barred. Indeed, the legislative history of the immunity repeal, recounted by the Court of Appeal in Whiteley, demonstrates that the immunity was withdrawn in part precisely because tobacco company misrepresentations had put into question the extent to which the public had received accurate information about the dangers of smoking.

“It reopens tobacco litigation in California,” said Northeastern University Law Professor Richard A. Daynard, who heads a group that promotes lawsuits against the industry. “The light just went from red to green.”

Sources: Millie Lapidario, “Tobacco Claims Will Start Smoking Again, Thanks to Calif. Ruling,” The Recorder (February 20, 2007); Dan Margolies, “Ruling deals setback to tobacco industry,” The Kansas City Star (February 17, 2007).

On the heels of the New Jersey Public Interest Research Group’s report (the subject of my May 3, 2006 post, “Deceptive Drug Marketing Puts Patients at Risk“), the American Medical Association (AMA) has urged a moratorium on new direct-to-consumer (DTC) prescription drug advertising.

“A temporary moratorium on DTC advertising of prescribed drugs and medical devices will benefit both the patient and physician,” stated AMA President-elect Ronald M. Davis, MD in the organization’s June 14th press release. “Physicians will have the opportunity to become better educated on the pros and cons of prescription drug uses before prescribing them, and will be better able to determine when they are best suited for their patients’ medical needs.

In addition, the AMA adopted additional guidelines for DTC ads, requiring:

• Objective information about drug benefits that reflect the true efficacy of the drug, as determined by clinical trials;
• A fair balance between the benefits and risks of the advertised drugs by providing comparable time and space for each, and by presenting warnings, precautions and potential adverse reactions in a clear and understandable way without distraction of content;
• A clear indication that the ad is for a prescription drug and refer patients to their physician for more information and appropriate treatment;
• Ads to be be targeted for age-appropriate audiences; and
• Ads to receive pre-approval from the FDA.

The AMA’s moratorium and guidelines vindicate many of NJPIRG’s findings relating to deceptive drug advertising.

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The United States Surgeon General has issued a massive 700 page report providing undisputed evidence that secondhand smoke is a health hazard at any level of exposure.

(An executive summary of the report and webcast of the press conference are also available.)

6 Major Conclusions of the Surgeon General Report:

1. Stricter Tobacco Control Needed. Many millions of Americans, both children and adults, are still exposed to secondhand smoke in their homes and workplaces despite substantial progress in tobacco control.
2. Exposure Causes Disease and Death in Non-Smokers. Secondhand smoke exposure causes disease and premature death in children and adults who do not smoke.
3. Children Are Especially at Risk. Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear problems, and more severe asthma. Smoking by parents causes respiratory symptoms and slows lung growth in their children.
4. Exposure Causes Immediate Health Harm. Exposure of adults to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer.
5. No Risk-Free Exposure Level. The scientific evidence indicates that there is no risk-free level of exposure to secondhand smoke.
6. Elimination of Smoking Is Solution. Eliminating smoking in indoor spaces fully protects nonsmokers from exposure to secondhand smoke. Separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate exposures of nonsmokers to secondhand smoke.

Kids are especially vulnerable because their bodies are still developing. Children exposed to smoke have twice the level of a nicotine byproduct in their blood as adult non-smokers. About 22 million children are exposed to secondhand smoke.

For further information, please visit the Surgeon General’s webpage, dedicated to “The Health Consequences of Involuntary Exposure to Tobacco Smoke.”

An initiative, which sought to restrict punitive damages in product liability suits, was withdrawn when John H. Sullivan, President of the Civil Justice Association of California (CJAC) failed to submit the requisite signatures to get it on the ballot.

Although the CJAC claims on its website that it is a “supported coalition of citizens, taxpayers, businesses, local governments, professionals, manufacturers, financial institutions, insurers, and medical organizations,” the only substantial financial backer of the anti-punitives initiative was Chevron with $1.9 million.¹ Even so, that was far less than the campaign’s projected $20 million price tag.² Without additional contributions, the measure floundered.

The initiative sought to add a provision to Civil Code section 3294 that would state:

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The U.S. Senate has rejected a bill that would restrict the authority of a jury to award a victim of medical malpractice what they believe to be just compensation for pain and suffering.¹

“The Bush administration talks about deterring frivolous [malpractice] cases, but caps by their nature apply only to the most serious cases which have been proven in court,” said Sen. Edward M. Kennedy (D-Mass.). “It is absurd to suggest that $250,000 is fair compensation for a person paralyzed for life.”²

In opposing the legislation, Sen. Harry Reid (D-Nev.) delivered the following remarks on the Floor of the U.S. Senate:

In this book [”The Medical Malpractice Myth” by Professor Tom Baker], Professor Baker methodically debunks the most common myths in the medical malpractice debate:

Myth No. 1: “Lawyers, not doctors, cause malpractice”

Professor Baker presents numerous studies demonstrating that the real problem is too much malpractice, not too much litigation. Of course most doctors are skilled professionals who do not commit malpractice. But just as there are a few rotten apples in every basket, there are a small number of unskilled or careless doctors in every state. Unfortunately they do not always come to the attention of licensing boards, and some move from state to state to avoid disciplinary action.

These rotten-apple doctors should be held accountable, and the victims of their negligence deserve to be compensated.

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The New Jersey Public Interest Research Group (NJPIRG) has published a report that details how drug companies inundate doctors and the public with marketing that misrepresents risks, promotes unproven uses, and makes unsubstantiated claims.

The report found:

• Deceptive drug marketing is pervasive, dangerous, and aimed at both consumers and doctors.
• “When the doctors prescribing those medicines have internalized the deceptive messages about drugs’ risks and effectiveness, those prescribing decisions may harm patients, not heal them. Taken by the wrong patient, a medicine is a poison.”¹
• “A single false TV ad seen by millions of people may have prompted thousands of them to make a decision harmful to their health.”²

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