Posts Tagged ‘Supreme Court’

A June 18 ruling from the U.S. Supreme Court has made it more difficult for older workers to sue an employer for age discrimination. In a 5-4 decision in Gross v. FBL Financial Services, the Court held that employees claiming age discrimination must prove that age was the deciding factor in their employers’ decision to demote or fire them. Previously, a plaintiff only had to show that age was one of the factors considered by the employer in making its decision. If the plaintiff could show that, then the burden would fall on the company to prove that it had a legitimate reason for making its decision.

In Gross, a 54 year old employee claimed that he was demoted because of his age and filed a lawsuit under the Age Discrimination Employment Act (ADEA). A jury awarded $47,000 to plaintiff Jack Gross, finding that Gross’s age was a “factor” in the decision to demote Gross. The majority opinion, written by Justice Thomas, stated that the trial court had made a mistake by not telling the jury that the plaintiff needed to prove that FBL demoted Gross because of his age.

The dissenting opinion, written by Justice John Paul Stevens, stated that the ruling was a “display of judicial lawmaking” that overturned earlier employment discrimination precedent and disregarded changes made to national civil-rights law in 1991.  Civil rights groups and the AARP also criticized the Gross ruling and called upon Congress to alter the standard of proof by passing legislation. Read more about other issues affecting the elderly, such as denture cream zinc poisoning and denture cream lawsuits.

The Supreme Court has found that asbestos exposure plaintiffs can recover pain and suffering damages, provided that their fear of developing asbestos-related cancer is genuine and serious.  In CSX Transportation Inc. v. Henley, the Court remanded the case of Thurston Henley, an electrician who contracted asbestosis while working for a railroad company, to determine whether his fear of developing cancer was genuine and serious.

Henley sought pain and suffering damages from CSX under the Federal Employers Liability Act (“FELA”) based on, among other things, his fear of developing asbestos-related cancers in the future.  The Court had previously allowed pain and suffering damages in such cases in Norfolk & Western R. Co. v. Ayers, 538 U.S. 135 (2003), but limited pain and suffering damages to cases in which the plaintiff can establish that his fear of developing cancer is “genuine and serious.”  The trial court, however, did not instruct jurors on the legal standard for fear-of-cancer damages, and the jury found for Henley and awarded him $5 million in damages.

The Tennessee Court of Appeals affirmed the decision, and stated that Ayers did not refer to jury instructions.  The “genuine and serious” mandate for fear-of-cancer damages referred only to the legal standard that judges should apply when deciding whether pain and suffering damages were applicable.

In a per curiam decision, over a dissent by Justice Stevens, the United States Supreme Court reversed the Court of Appeals’ decision, and stated that jurors must be instructed that an asbestos plaintiff’s fear of developing cancer must be genuine and serious to recover pain and suffering damages.  The Court reasoned that, because of the amount of pending asbestos claims and because of jurors’ strong emotional reaction to cancer claims, jurors need to be instructed that the fear of cancer in FELA cases must satisfy a high standard.  Henley’s case was remanded to the trial court, where he could receive a new trial that uses the “genuine and serious” jury instructions. 

Justice Stevens argued that “genuine and serious” jury instructions only need to be given at the trial judges’ discretion.  Justice Stevens believed that the per curiam opinion impractically interfered with trial court procedure, and misapplied the intention of the Court in Ayers.

The effect of the court’s decision is to allow plaintiffs suing under FELA who do not suffer from cancer and were exposed to asbestos obtain pain and suffering damages if they prove that their fear of cancer is “genuine and serious.”  Jurors will be instructed on this standard before deliberating on fear-of-cancer damages.  Read more about asbestos exposure lawsuits.

The U.S. Supreme Court has found that a 1986 ruling by a bankruptcy judge prevents plaintiffs from initiating new claims against insurers of Johns-Manville, once of the largest producers of asbestos in the world. The June 18 holding overturns a Second Circuit Court of Appeals decision which found that the bankruptcy judge had exceeded his jurisdiction.

The bankruptcy court’s 1986 ruling prevented future lawsuits against Manville and its insurers for asbestos-related claims, provided that the company sets up a trust to settle such claims. However, a few years later, plaintiffs began filing lawsuits against Travelers for its role as one of Manville’s main insurers, saying that the suits were allowed because they were for Travelers’ violations of consumer protection laws, not Manville’s actions. In 2004, the insurance company reached an agreement that would settle then-existing cases under this new theory for approximately $440 million. In return, the original bankruptcy judge issued a “clarifying statement” saying that such suits were enjoined by the 1986 ruling. The case before the Supreme Court challenged this agreement.

The effect of the Court’s decision is to bar future lawsuits against Travelers for any claims related to exposure to Manville asbestos. However, the majority opinion emphasized that the ruling had a very narrow application, and was not intended to address bankruptcy court jurisdiction in general. Justices Stevens and Ginsburg dissented, saying that the 1986 order should only bar asbestos-related claims for Manville’s actions, not the actions of Manville’s insurance companies. Read more about asbestos exposure.

Occasionally we will report here on the ConsumerInjuryLawyers.com blog some of the good deeds and hard work we are doing for our clients and consumers generally.  One of the many ways that Bernstein Liebhard looks out for our consumers is to stay active on issues important to them, their families and their legal rights.  We even do this sometimes without getting paid or the prospect of getting paid.  Ms. Levine, whose case was argued before the U.S. Supreme Court yesterday, is not our client.  But, earlier this Summer, Bernstein Liebhard, pro bono (we did not get paid for our work), filed an amicus (friend of the court) brief with the U.S. Supreme Court on behalf of third party payor clients (union health and welfare funds) and doctors supporting Ms. Levine’s position before the U.S. Supreme Court.  Our clients on the brief share our fundamental belief that consumers should have the right to sue drug companies when they are injured by dangerous drugs in a way that could be avoided had drug companies provided the proper warnings to patients and doctors.  The Wyeth case has been widely reported as the “business case of the century” and the Chamber of Commerce has sunk millions of dollars framing the issues for a win for drug companies in FDA preemption cases such as Wyeth.  The case is important to Big Pharma because it represents the strongest attempt in history by big business to eliminate consumer rights and protect them from lawsuits.  

Bernstein Liebhard’s briefing was led by Ann Lipton, a former Bernstein Liebhard associate and former law clerk to U.S. Supreme Court Justice David Souter.  Ann and the team did a brilliant job putting together the brief with the clients.  Our brief traced out a long history of the drug at issue in the case, Phenergan, and how it was marketed and sold by Wyeth without a contraindiciation on its label warning not to inject Phenergan directly into the vein.  In plain English, it means that Wyeth knew that Phenergan given to a patient in an IV could escape the vein and kill tissue — causing gangreen and potentially requiring amputation.  In the Levine case, Ms. Levine, a professional musician, was administered the drug by IV push, the drug went outside the artery and caused gangreen, necessitating the amputation of her arm.  For Ms. Levine, she luckily at least able to sue in her home state of Vermont alleging that the pharmaceutical company failed to warn doctors that they should not administer Phenagren by IV push.  This right is what Wyeth is looking to the U.S. Supreme Court to take away from consumers.

Like many of the consumers who come to us on a daily basis, Ms. Levine was injured by a product and looked to her attorneys to help her recover compensation that would cover her losses (she lost her job as a musician) and pain and suffering.  Ultimately, a jury sided with Ms. Levine, awarding her $6.7 million.  Wyeth claims, however, that because the FDA had approved the warning label for the drug, individual consumers should not be allowed to sue the company.  Wyeth’s argument undoubtedly placed corporate profits and distractions from lawsuits ahead of individual consumers.  Unfortunately, however, the Bush administration’s FDA, counter to long standing FDA policy supporting consumers, filed a brief supporting Wyeth and opposing Ms. Levine.  This news was of course shocking and horrifying to Ms. Levine, who lost her arm, and also to many other consumers out there who look to the FDA to keep them safe.  All too often, the FDA has failed and it seems to lack the legal teeth or resources to keep the pharmaceutical industry in tact.  

David Frederick, Ms. Levine’s counsel, cited to the amicus brief that Bernstein Liebhard drafted a number of times when arguing the case to the Supreme Court.  You can read the full transcripts here, but excerpts from the argument transcript where the amicus brief prepared by Bernstein Liebahrd is cited include:

MR. FREDERICK [in response to a question from Justice Scalia]: That was not our burden and that was not how the testimony came in at trial. But as the amicus brief by Dr. Budhwani, et al. at pages 54 establishes had Wyeth been a reasonably prudent manufacturer over the years, it would have known that the risks of IV push so far outweigh any bearing negligible benefits, that it would have offered a stronger instruction, it would have moved to revise its label either with FDA approval or - 

(11/3/08 Argument Transcript at 28)

MR. FREDERICK [in response to a question by Justice Scalia]: I think that the dispute is — is what constitutes new information, because we don’t take issue with the notion that new information can be new analysis of prior submitted data; and what the amicus brief by Dr. Budhwani et al. points out is that there was a lot of unpublished information about the harms of Phenergan that was known to Wyeth or should have been known to Wyeth in the ’80s and ’90s that would have justified a change under the CEE regulations.

(11/3/08 Argument Transcript at 33)