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June 29, 2011

Musty Odor Prompts Tylenol Caplet Recall

Spine Experts Repudiate Medtronic Studies

Medtronic Surgeons Held Back, Study Says

Denver Jury Acquits Xcel Energy in Workers' Deaths

VA Hospital Settles With Man Blinded During Routine Cataract Operation

US Supreme Court Sides With Foreign Businesses

Suit Filed over Amtrak Crash that Killed Six

5th U.S. Circuit Court of Appeals: Torts - loss of consortium

Houston's 1st Court of Appeals: Torts - Texas Tort Claims Act

Houston's 1st Court of Appeals: Torts - premises-defect claim

Texas Supreme Court: Torts - Texas Tort Claims Act

 

 

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Musty Odor Prompts Tylenol Caplet Recall

Johnson and Johnson has issued a recall of 60,912 bottles of Extra-Strength Tylenol caplets due to a "musty, moldy odor" coming from the bottles. The company reported the odor could be caused by a preservative used to treat the wood pallets that transport the products. The chemical is not toxic but it can cause gastrointestinal irritation.  Katherine Hobson, WSJ Blogs  06/28/2011

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Spine Experts Repudiate Medtronic Studies

In an extraordinary move, a group of spine specialists are publicly repudiating the research of other experts that has backed the widespread use of a Medtronic bone growth product. In a series of reports published in a medical journal on Tuesday, the specialists called the research misleading and biased. The repudiation, appearing in a full issue of The Spine Journal devoted to the topic, represents a watershed in the long-running debate over conflicts of interest for the sponsorship of scientific studies by makers of drugs and medical devices.  BARRY MEIER & DUFF WILSON, The New York Times  06/29/2011

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Medtronic Surgeons Held Back, Study Says

Surgeons who conducted clinical trials to test a Medtronic Inc. bone-growth protein widely used in spine surgery didn't report serious complications that arose in those trials in their research papers, a new study says. Over the past decade, 15 of those surgeons have collectively received at least $62 million from the medical-device giant for unrelated work, according to a Wall Street Journal analysis of Medtronic documents and of recent disclosures made on the company's website.  JOHN CARREYROU & TOM MCGINTY , Wall Street Journal - $$ Subscription Required  06/29/2011

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Laws/Cases

 

Denver Jury Acquits Xcel Energy in Workers' Deaths

Xcel Energy Inc. and its Colorado subsidiary were acquitted of criminal charges Tuesday in the deaths of five workers at a hydroelectric plant tunnel in the mountains west of Denver. A jury in Denver's U.S. District Court acquitted the Minneapolis-based utility and Public Service Co. of Colorado of five counts of violating federal safety regulations, including not having a rescue plan. The workers were trapped in the Cabin Creek plant tunnel near Georgetown, about 40 miles west of Denver, when a flammable solvent they were using to clean an epoxy paint sprayer ignited Oct. 2, 2007.  Associated Press, Yahoo News  06/29/2011

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VA Hospital Settles With Man Blinded During Routine Cataract Operation

A 60-year-old Army veteran won a $925,000 settlement with the Department of Veterans Affairs after he was blinded in one eye during a routine outpatient cataract operation. Jose Goncalves of Hartford was blinded in his right eye when a third-year resident at the VA Hospital in West Haven incorrectly administered an anesthetic during the procedure in 2007. The resident then injected too much anesthetic, causing his eyeball to explode.  Associated Press, The Washington Post  06/29/2011

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US Supreme Court Sides With Foreign Businesses

The US Supreme Court has ruled that a New Jersey man who lost four fingers in a workplace accident on a metal-cutting machine cannot sue the British maker of the equipment in New Jersey. The court voted 6-3 Monday that the manufacturer’s connection to New Jersey is too tenuous to allow the lawsuit to be filed there. In a separate case, the court similarly ruled unanimously against the relatives of two teenagers from North Carolina who were killed in a bus accident in France. The court said the relatives could not sue a foreign tire maker in state court over alleged defects that led to the accident.  Associated Press, The Washington Post  06/29/2011

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Suit Filed over Amtrak Crash that Killed Six

A 38-year-old Amtrak attendant has filed a lawsuit against a trucking company after one of its truck crashed into an Amtrak train in Nevada, killing six people. The plaintiff claims in her lawsuit that the driver of the truck "negligently and carelessly failed to heed railroad warning signs" before crashing into the train. Safety investigators said skid marks at the scene show the driver slammed on his breaks about 100 yards before the railroad crossing, but they say it is unclear as to why he did not slow down earlier.  Timothy Pratt, Reuters  06/28/2011

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TEXAS LAWYER CASE SUMMARIES

 

5th U.S. Circuit Court of Appeals: Torts - loss of consortium

The district court held that that the plaintiff could not, as a matter of law, maintain a loss of consortium claim because the claim arose from a civil rights violation against his wife. In Texas, a loss of consortium claim may not derive from a spouse's federal civil rights claim. Also, the plaintiff's loss of consortium claim must derive from his wife's successful tort claim for her physical injuries. That is not possible here because the arbitrator dismissed the wife's tort claims with prejudice. The district court's order granting summary judgment is affirmed. Barker v. Halliburton Co., 5th U.S. Circuit Court of Appeals, No. 10-20638, 06-23-2011.  , Texas Lawyer Opinions (TTLA Members Only)  06/29/2011

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Houston's 1st Court of Appeals: Torts - Texas Tort Claims Act

April Walker sued Harris County Sheriff's Department Deputy Corey Alexander and Sergeant Jimmie Cook for assault, conspiracy, slander, false arrest, false imprisonment and malicious prosecution. Several weeks later, Walker sued Harris County in federal court for the same claims that she asserted against the officers, based on vicarious liability, and for violation of 42 U.S.C. §§1983 & 1988. The officers moved for summary judgment in the state court proceeding, contending that the election of remedies provision of the Texas Tort Claims Act bars the suit against them. The trial court denied the motion. Under Texas Tort Claims Act §101.106(b) Walker irrevocably elected to sue the police officers individually, barring all subsequent suits against Harris County, their governmental employer. That election foreclosed any subsequent election under §101.106(a) when Walker sued the county in federal court, absent the applicability of subsection (f). The trial court properly denied the officers' summary judgment motion. The trial court's order is affirmed. Alexander v. Walker, Houston's 1st Court of Appeals, No. 01-10-00147-CV, 06-23-2011.  , Texas Lawyer Opinions (TTLA Members Only)  06/29/2011

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Houston's 1st Court of Appeals: Torts - premises-defect claim

Appellant, Tracy Griffin, challenges the trial court's rendition of summary judgment in favor of appellees, Shell Oil Co. and CH2M Hill IDC Facilities Inc., in Griffin's personal-injury suit against Shell and CH2M. If an independent contractor is injured by a concealed defect that is not created by his work activity and the premises is controlled by an owner or occupier, the owner or occupier has a legal duty to, among other things, inspect the premises and warn of dangerous conditions of which the owner or occupier knows or should know and, thus, Texas law permits the contractor to pursue a premises-defect claim against the owner or occupier. The trial court's judgments in favor of Shell and CH2M on Griffin's premises-defect and negligent-activity claims are reversed and the matter is remanded. Griffin v. Shell Oil Co., Houston's 1st Court of Appeals, No. 01-09-01089-CV, 06-23-2011.  , Texas Lawyer Opinions (TTLA Members Only)  06/29/2011

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Texas Supreme Court: Torts - Texas Tort Claims Act

James Carroll suffered a stroke and received treatment from Dr. Kachikwu Illoh, an employee of the University of Texas Health Science Center — Houston (UTHSCH). After James Carroll died, allegedly because of septicemia caused by bed sores developed while under Illoh's care, Damita Carroll and Karen Butler sued Illoh and another doctor. Illoh moved to dismiss the suit under the Texas Tort Claims Act. The trial court denied the motion, and the court of appeals affirmed. A tort action may be brought under the Tort Claims Act even if that tort action does not fall within the Act's limited waiver of immunity. The court of appeals' judgment is reversed and remanded. Illoh v. Carroll, Texas Supreme Court, No. 10-0748, 06-24-2011.  , Texas Lawyer Opinions (TTLA Members Only)  06/29/2011

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