A California appeals court has thrown a haymaker at Johnson & Johnson, deciding that the pharmaceutical company may be liable for punitive damages in a lawsuit challenging the adequacy of warnings provided with over-the-counter Motrin.

The lawsuit was brought by Christopher Trejo of Los Angeles.

In October 2005 when he was 15 years old, Trejo developed a rare and serious skin condition known as Stevens-Johnson Syndrome (SJS). Trejo has the more severe variant, Toxic Epidermal Necrolysis (TEN).

TEN is nasty business, potentially life threatening and characterized by the detachment of the top layer of skin from the lower layers of the skin all over the body. 

Researchers say that TEN is normally the result of a bad reaction to medication. 

Trejo claims that his condition was the result of a severe adverse reaction to Motrin, an over-the-counter pain reliever containing ibuprofen, a non-steroidal anti-inflammatory drug (NSAID).

In 2008, Trejo sued Johnson & Johnson and McNeil Consumer Healthcare Division for strict products liability, negligence, and breach of warranty. McNeil makes over-the-counter Motrin and is a subsidiary of Johnson & Johnson.

According to Trejo’s complaint, Johnson & Johnson and McNeil have long known about the risks of SJS and TEN, yet failed to provide specific warnings about those risks with its Motrin product.

Moreover, Trejo alleged that Johnson & Johnson and McNeil misrepresented study results to the FDA in obtaining its approval for over-the-counter Motrin.

Trejo filed his lawsuit in Los Angeles County Superior Court. The trial court refused to strike Trejo’s claim for punitive damages and Johnson & Johnson appealed that ruling.

In an opinion certified for publication on Wednesday, the California Court of Appeal decided Trejo could submit his claim for punitive damages to a jury.

Johnson & Johnson tried to argue that Trejo could not possibly show that the company and its subsidiary acted with the requisite malice in light of the fact the FDA had approved its labeling for Motrin.

But the court decided that Johnson & Johnson could not hide behind the FDA stamp of approval.

First, there was evidence presented by Trejo that McNeil has known since the 1980s that ibuprofen is associated with SJS/TEN. Despite these allegedly known risks, the drug company never proposed to the FDA a specific warning, opting in the end to simply warn consumers of the general risk of severe allergic reactions.

On this issue, the court also made the point that foreign labels for Motrin have long contained more information about SJS/TEN.

In explaining that Johnson & Johnson and McNeil had a duty to be more proactive, the court observed that “federal regulations permit labeling changes without FDA approval to ‘add or strengthen a contraindication, warning, precaution, or adverse reaction’ or to ‘add or strengthen an instruction about dosage and administration that is intended to increase the safe use of the drug product.’”

That being the case, the court concluded that “there are triable issues of fact regarding whether McNeil’s FDA-approved labeling could evidence despicable conduct or conscious disregard for safety. The relevant federal regulations place the burden on manufacturers to ensure their drug labeling is adequate at all times, regardless of FDA approval of existing labeling.” (Johnson & Johnson v. Superior Court)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

When Neil Kramer used his cell phone to entice a child, little did he know that he may have tacked on more than two years to his prison sentence when he was finally nabbed by police. 

Kramer pleaded guilty in Missouri federal court to a charge of transporting a minor in interstate commerce with the intent to engage in criminal sexual activity with her.

Kramer also admitted using his cell phone — a Motorola Motorazr V3 — to call and text the victim during the six-month period preceding the offense. 

With his guilty plea, Kramer ordinarily would have faced 140 months in prison. 

The sentencing judge, however, piled on an additional 28 months. 

The judge decided that Kramer’s cell phone was a “computer” within the meaning of 18 U.S.C. §1030(e)(1), triggering a two-level enhancement under §2G1.3(b)(3) of the U.S. Sentencing Guidelines for the device’s use in the commission of a crime. 

Tuesday, the 8th Circuit found nothing wrong with the 28-month sentence enhancement. 

In what appears to be a case of first impression, the 8th Circuit agreed that the language of 18 U.S.C. §1030(e)(1) is broad enough to encompass cell phones. The court noted that the statute provides that a device is a computer if it is “an electronic … or other high speed data processing device performing logical, arithmetic, or storage functions.” 

The court said that this definition “captures any device that makes use of an electronic data processor, examples of which are legion.” The court went so far as to suggest that the definition would include common household items like coffeemakers and microwave ovens, even refrigerators and televisions. 

The court explained that “each time an electronic processor performs any task — from powering on, to receiving keypad input, to displaying information — it performs logical, arithmetic, or storage functions. These functions are the essence of its operation.” 

In objecting to the enhancement of his sentence, Kramer argued in vain that his cell phone could not be deemed a computer because the device wasn’t connected to the Internet. 

The 8th Circuit frankly wondered why this had anything to do with the price of cabbage. 

“[T]here is nothing in the statutory definition that purports to exclude devices because they lack a connection to the Internet. To be sure, the term computer ‘does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.’ But this hardly excludes all non-Internet-enabled devices from the definition of ‘computer’ — indeed, this phrasing would be an odd way to do it,” the court said. (U.S. v. Kramer) 

So Kramer is stuck with his enhanced sentence. And given the nature of his crime, who besides Kramer has any real complaints that he’ll be behind bars for an extra 28 months?

- Pat Murphy

patrick.murphy@lawyersusaonline.com

A Pennsylvania appeals court has reinstated a reported $10.3 million jury verdict against Wyeth Pharmaceuticals for failing to warn of the breast cancer risks associated with the hormone replacement therapy drug Prempro. 

The trial judge in 2007 vacated the verdict in favor of the plaintiff, Mary Daniel, after concluding that her expert on causation had recanted his testimony in a later deposition filed in another case.

But the Pennsylvania Superior Court decided Monday that there had been no “fraud on the court” in Daniel’s case.

“The trial court’s attempts to distinguish [the expert's] testimony at the two depositions reflects a failure to read the entirety of the testimony at either deposition,” the appeals court said.

Mary Daniel, a resident of Arkansas, sued Wyeth in 2004, claiming that she developed breast cancer after taking Prempro for a year and a half.  

In January 2007, a Philadelphia jury found Wyeth liable and awarded Daniel and her husband a total of $1.68 million in compensatory damages. 

The jury also awarded punitive damages, the amount of which the trial judge originally ordered kept under seal.

However, according to Bloomberg News, one of Daniel’s lawyers has confirmed that the jury awarded $8.6 million in punitive damages in the case. 

Daniel’s trial was the fourth in one of the longest running mass torts to date. An estimated 8,000 to 10,000 women claim the drugs Prempro and Premarin cause breast cancer and that Wyeth (now owned by Pfizer) failed to warn about the dangers. 

Monday’s decision by the state court of appeals also rejected Wyeth’s alternative argument that Daniel’s evidence failed to establish proximate causation.

“Sufficient evidence of record exists in this case permitting the jury to find that if Wyeth had issued adequate warnings regarding the risk of breast cancer, [Daniel's doctor] would have altered his prescribing practices for Prempro (by specifically advising Daniel of the risk of breast cancer), and Daniel’s injury would have been avoided since Daniel would have declined the prescription,” the court said. (Daniel v. Wyeth)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Being the lowest of the low, sex offenders are rarely cut any slack in the criminal justice system.

There’ll be no tears shed in this corner over that fact of life.

The special treatment seems more than justified since sex offenders are about four times more likely than non-sex offenders to be arrested for another sex crime after getting out of prison.

But one New Mexico defendant, once imprisoned for abusing a child, rails against the notion that he’s being subjected to polygraph testing as a condition of his supervised release.

Judges typically view with skepticism the usefulness of the polygraph, often treating the device as some unwanted relic of the Spanish Inquisition.

Yesterday, however, the 10th Circuit signed off on a district judge’s order requiring Toby Begay to undergo clinical polygraph testing as he transitions back to society.

In 1996, Begay pled guilty to the aggravated sexual abuse of a child. The incidents underlying his conviction took place within the Navajo Nation.

With other charges, the U.S. District Court in New Mexico sentenced Begay to 196 months’ imprisonment and 60 months’ supervised release.

At the end of his term of imprisonment, Begay was released to a halfway house with the anticipation that he would return to the Navajo Nation in March 2010.

The U.S. Probation Office (USPO), not satisfied with his original sentence, filed a motion to add more special conditions of supervised release.

The conditions sought by the government were the typical laundry list: a waiver of confidentiality regarding mental health treatment; prohibition of sexually explicit material; submission to reasonable searches of person, property and vehicles; and prohibition on contact with children under eighteen without prior written permission of the probation officer.

One final special condition caught Begay’s attention, however. The government wanted Begay to submit to clinical polygraph testing as part of his sex offender treatment and other risk assessment testing.

Begay objected, arguing that the polygraph testing condition is invalid because the test is unreliable, subject to manipulation and results in an unconstitutional deprivation of his liberty.

Monday, three judges of the 10th Circuit overcame their instinctive skepticism and concluded that polygraph testing is a valid condition of Begay’s supervised release.

“Polygraph testing could … encourage Begay to be truthful with his probation officer, and it could alert the USPO to potential problems which would prompt further supervisory inquiry,” the court said.

Shooting down Begay’s constitutional argument, the court explained that “[w]e have held that special conditions constitute a greater than necessary deprivation of liberty when they infringe upon fundamental liberty interests, such as familial association. Although polygraph testing may be invasive and anxiety-provoking, it does not rise to this level.” (U.S. v. Begay) 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

When Michael Greer steps out of a federal prison in 2019, you can bet that Tangela, the love of his life, will be there to greet him. 

After all, her name is tattooed on his arm. And when a young guy gets a tattoo, what more needs be said? We’re definitely talking never-ending love, right? 

Then there’s the little matter of the “Tangela” tattoo clinching Greer’s conviction.

In 2009, a jury found Greer guilty of one count of possessing a firearm and ammunition as a convicted felon. That bought Greer a 10-year prison sentence.

The conviction stemmed from events that occurred in Rochester, New York, on Aug. 17, 2007.

Greer had a prior felony conviction. An informant tipped police off that Greer was carrying a gun, a definite no-no for a convicted felon.

During the course of a ruse to flush Greer out, police found themselves following Greer driving a light blue Hyundai Sonata. When police tried to pull Greer over, he fled.

Police later discovered the Sonata abandoned in the parking lot of an apartment complex. They found Greer hiding in a nearby apartment.

In addition, police found a Glock Model 22 semi-automatic pistol and the keys to the Sonata in a white garbage can near the entrance to the apartment.

A search of the Sonata yielded a magazine which contained nine bullets and fit the Glock 22 from the garbage can.

At trial, federal prosecutors had the task of linking Greer to the abandoned Sonata and the ammunition found inside the vehicle.

Unfortunately for Greer, this task was made easier by the “Tangela” tattoo on his left arm, combined with the fact that the Sonata was rented to a woman by the name of Tangela Hudson.

Greer argued that it violated his right against self incrimination when one of the arresting officers testified about observing the “Tangela” tattoo on Greer’s arm.

Friday, the 2nd Circuit agreed that the tattoo evidence was testimonial in nature and therefore qualified for Fifth Amendment protection.

“The government relied on the tattoo not as an ‘identifying physical characteristic’ but for the ‘content of what [was] written,’” the court explained. “The tattoo was therefore testimonial and, because it linked Greer to the ammunition, incriminating.”

The court nonetheless held that there was no constitutional violation.

“The voluntary tattooing of an incriminating word to Greer’s arm was … not the product of government compulsion. In the absence of compulsion, Greer’s Fifth Amendment claim fails,” the court said. (U.S. v. Greer)

So young Mr. Greer stays in prison, comforted by the daily reminder of his intended, Tangela.

And who can doubt that ten years hence it will be Tangela showing up to greet Greer as he steps from the shadows of prison? Certainly their love is as permanent as the ink staining Greer’s arm.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

When a client hands you a check for $225,000, you tend to accept it as genuine.

But this tale of woe just might have you taking a second gander at that next big check that crosses your palms.

In January 2009, the New York City firm of Fischer & Mandell (now known as The Barry Fischer Law Firm) received a $225,351 check from a new client. F&M was a boutique firm focused on international commercial disputes, so it wasn’t out of the ordinary for the firm to handle large amounts. 

The check appeared to be an official Wachovia Bank check and was made payable to the law firm. The client told F&M that the check represented partial payment of a debt owed by another entity to the client.

On Thursday, Jan. 15, 2009, F&M deposited the check into its attorney trust account at Citibank.

The client subsequently requested a wire transfer of a portion of the funds.

On Monday, Jan. 19 — Martin Luther King Day — F&M checked its trust account via the Citibank website. The website indicated that funds in excess of the amount of the Wachovia check were “available.”

Assured by this information, F&M proceeded to follow the client’s instructions.

F&M requested a wire transfer of $182,780 to an account in South Korea, and Citibank executed the transfer the next day.

Pursuant to a second request by the client, on Wednesday, Jan. 21, F&M again accessed its trust account online and transferred $27,895 to an account in Canada.

Later that afternoon, the Federal Reserve Bank returned the Wachovia check as dishonored and unpaid. A Citibank employee phoned F&M to advise the firm that the check was counterfeit.

Moreover, F&M was unable to cancel the wire transfers requested by the client because someone had already withdrawn the funds from the foreign accounts.

Because of the dishonored check, Citibank proceeded to charge back to F&M’s trust account the amount of the counterfeit Wachovia check. Citibank then corrected the overdraft by debiting funds from F&M’s money market account.

Adding insult to injury, Citibank tacked on a $10 overdraft fee.

Rocked by the turn of events, F&M sued Citibank for breach of contract and negligence. The law firm contended that it had relied on Citibank’s advice that the funds were “available” in its trust account.

A federal court dismissed the lawsuit and yesterday the 2nd Circuit confirmed the bad news that F&M was out of luck after evidently being scammed by its erstwhile client.

Regarding the breach of contract claim, the 2nd Circuit said that the bank’s customer agreements “clearly show that while Citibank gave its customers the ability to make use of check proceeds provisionally, that is, before checks cleared, that right was subject to a charge back if a check was returned. …

“We hold, in the circumstances here, that ‘available’ meant only that account balances were ‘available’ for use on a provisional basis, subject to a charge back if a check was returned, and not that the account balance represented collected funds.”

The law firm fared no better on its claim for negligence.

F&M tried to argue that Citibank failed to exercise reasonable care by waiting too long in cancelling the two wire transactions after the law firm asked the bank to do so.

But the court found this argument unconvincing, observing that “Citibank executed the payment order for the first wire transfer at 7:51 a.m. on January 20 and for the second wire transfer at 9:37 a.m. on January 21, both well before F&M made its request to cancel at 3:30 p.m. on January 21. …

“Hence, F&M’s cancellation order was not effective, as it did not give Citibank ‘a reasonable opportunity to act on the communication before [it] accept[ed] [i. e., executed] the payment order.’” (Fischer & Mandell v. Citibank)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Do you trust your office manager?

One Rhode Island ophthalmologist did and now finds himself short $233,000.

Doctor William J. Andreoni is the sole owner of Ophthalmic Surgeons Ltd. in Johnston, Rhode Island.

Carleen Connor was the office manager for the ophthalmology practice until her termination in 2006.

According to court records, between 2001 and 2006, Connor “managed” to orchestrate the office payroll so that she was paid $233,159 more than her authorized annual salary of $33,280.

Connor allegedly pulled this off by getting Paychex — Ophthalmic Surgeons’ direct deposit payroll service — to split her weekly paycheck into two direct deposit payments.

Since Connor was in charge of calling in the office payroll to Paychex, this sleight of hand enabled to Connor to receive unearned pay.

What made this all a little too easy was the fact that Connor was also the person who received the reports from Paychex confirming withdrawals from Ophthalmic Surgeons’ bank account.

When Dr. Andreoni finally discovered what was going on, he fired Connor and sued Paychex to recover his money.

Paychex is big time, handling the payrolls of more than 500,000 businesses, so it would probably be a good idea to take note of Dr. Andreoni’s travails. 

Doctor Andreoni’s breach of contract lawsuit hinged on one provision in the Paychex service agreement.

The contract, which is governed by New York law, states that “Paychex is authorized to draw from Client’s bank account as specified by Client, such amounts as are necessary to pay its employees.”

Doctor Andreoni argued that this clause was ambiguous and wanted to introduce extrinsic evidence showing that Paychex had a duty to oversee whether withdrawals from the office bank account were “necessary” to pay Ophthalmic Surgeons’ employees.

Monday, the 1st Circuit nixed this argument and affirmed a summary judgment in favor of Paychex.

The court decided that the relevant contract language “clearly and unambiguously establishes that it is the Client who has to specify the amounts that Paychex is authorized to withdraw from the Client’s bank account.”

The court read the second operative clause — “such amounts as are necessary to pay its employees” — to modify the first.

Accordingly, the court read the provision as creating “a limitation on the amount of money that Paychex is authorized to withdraw from the Client’s account and not as creating an affirmative responsibility for Paychex to verify the amounts the Client specifies.” (Ophthalmic Surgeons v. Paychex) 

Doctor Andreoni had one arrow left in his quiver, arguing that Paychex was liable because Connor lacked actual or apparent authority to authorize the transactions at issue. 

The court quickly dispensed with this argument.

“We find that Paychex’s reliance was reasonable and that Connor had apparent authority because [Opthalmic Surgeons] put Connor in a position where it appeared that she had the power to authorize additional paychecks,” the court said.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Leave it to San Francisco to make the Grand Gesture marking its commitment to progressive dogma, then pirouetting away from the bloody consequences of its decision.

Danielle Bologna claims that the murders of her husband and two of her sons were the direct result of San Francisco’s policy not to cooperate with federal officials in tracking down illegal immigrants.

Monday, the California Court of Appeal decided that San Francisco’s sanctuary policy did not provide a basis for making the city liable for the murders.

“The fact that reporting suspected illegal immigrants arrested for drug offenses to the federal immigration authorities may also prevent them from committing violent crimes is not enough to warrant our conclusion that [state law] creates an actionable tort on behalf of the general public,” the court said.

San Francisco’s controversial sanctuary policy bars city officials from cooperating with federal crackdowns on illegal immigrants.

On June 22, 2008, Anthony Bologna and his sons, Michael and Matthew, were shot and killed as they sat in their car near their residence in the Excelsior district of San Francisco. Their murders occurred after they returned home from a family barbecue.

Edwin Ramos is charged in the murders. Ramos allegedly is a member of the notorious MS-13 street gang. It has been theorized that Anthony, Michael and Matthew were mistaken for members of a rival gang.

Born in El Salvador in 1986, Ramos entered the U.S. illegally when he was 13. Since entering the U.S., Ramos has had numerous run-ins with San Francisco police, including arrests for violent crimes and drug offenses.

In suing San Francisco for wrongful death, Danielle Bologna alleges that the city’s sanctuary policy prevented police from reporting Ramos to federal immigration authorities so that he could be deported.

Bologna argued that San Francisco was negligent per se as well as liable under a state law making government agencies liable for injuries caused by a failure to discharge mandatory duties imposed by law.

The statutory duties underlying these claims arise from federal immigration law requiring the free exchange of immigration information between federal, state and local authorities, and a state law requiring the reporting of arrestees suspected of being illegal immigrants.  

But the court of appeal concluded that Bologna was out of luck because the federal and state reporting requirements are not intended to protect U.S. citizens like her murdered family members.

Regarding the state law, the court said that a “fair reading of the legislative history reveals no indication of an intent to remove undocumented immigrants from the country for any reason other than to combat the drug trade.”

The court likewise concluded that the Danielle Bologna could “identify nothing in the language or historical circumstances of title 8 United States Code section 1373 that indicates it was designed to protect the public from violent crimes such as the tragedy that befell the Bologna family.” (Bologna v. San Francisco) 

The logic underlying the court’s decision may be understandable in the narrow sense. To predicate tort liability on a statutory duty requires more than a general notion that the law in question is supposed to benefit the public at large.

But it still sticks in the craw that San Francisco, a city that supposedly prides itself in standing up for the little guy, is shameless in resorting to all the familiar legal devices to protect its own deep pockets in a case such as this.

Danielle Bologna lost a husband and two sons, most likely because the city’s police were hamstrung in expelling a murderous gang member from the community.

So maybe it’s time for the city to pay up, taking responsibility for providing a safe haven to a dangerous undocumented alien under some misguided notion of social justice.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

The Family and Medical Leave Act does a fairly good job of protecting employees in crisis.

But you need to follow the rules. And if you value your job, you probably shouldn’t try to test the outer boundaries of the Act’s protections.

Maria Tayag lost her job because she wrongly assumed that the FMLA would protect her when she accompanied her seriously ill husband on a seven-week faith healing trip to the Philippines.

Maria’s husband, Rhomeo, is not a well man. He suffers from gout, chronic liver and heart disease, rheumatoid arthritis, and kidney problems that led to a transplant in 2000.

Rhomeo was scheduled for an angioplasty procedure in July 2006. With all his other health problems, Maria felt the timing was right for a faith healing trip to the Philippines.

Maria worked as a health management clerk for Lahey Clinic Hospital in Massachusetts. The hospital had previously approved Maria’s request for FMLA leave to attend to her husband’s needs. And Maria had used vacation time in May 2006 to take her husband on a pilgrimage to Lourdes, France.

So Maria probably didn’t anticipate any problems when she submitted a vacation request form for August 7 to Sept. 22, 2006. She wanted to accompany Rhomeo on a trip to the Pilgrimage of Healing Ministry at St. Bartholomew’s Parish. The Roman Catholic church is located in Catbalogan in the Philippines.

While in the Philippines, Maria also planned on visiting family and friends.

Maria’s supervisor denied the vacation request, concerned that the department would be left short-staffed.

With her vacation request denied, Maria submitted a written request for FMLA leave.

In turn, her employer requested FMLA certification from Rhomeo’s doctors after he underwent the angioplasty in July.

Rhomeo’s primary care physician provided certification of a sort, sending a note recommending that Maria receive medical leave “to accompany Mr. Tayag on any trips as he needs physical assistance on a regular basis.”

Maria apparently thought this was good enough, so off she and her husband went to the Philippines.

Unfortunately, on August 8, Rhomeo’s cardiologist sent Maria’s employer a note stating that that Rhomeo was “presently … not incapacitated” and that [Maria] Tayag would not need leave.”

With this information, Maria’s employer formally denied her request for FMLA leave. Because Maria was in transit with her husband, she didn’t receive the messages that leave had been denied.

On August 18, the employer fired Maria after failing to hear from her.

Maria sued, alleging that the Lahey Clinic had violated her rights under the FMLA.

But last January, U.S. District Judge Patti Saris of the District of Massachusetts granted Lahey Clinic’s motion for summary judgment.

Judge Saris said that the “FMLA does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an ‘incidental consequence’ of taking him on vacation.”

Last week, the 1st Circuit turned away Maria’s appeal, rejecting her contention that her husband’s faith healing trip was entitled to the same deference that the FMLA explicitly affords Christian Science practitioners. 

In addressing Maria’s argument that the FMLA was making an unconstitutional distinction between religions, the court explained that Maria “does not claim that Rhomeo’s religion forbids ordinary medical care, and she has already taken FMLA leave a number of times to assist him in connection with receiving such care. …

“And it is hard to see how more would be required: distinguishing among religions as such may well be suspect; limiting FMLA coverage for faith healing trips to those whose faith makes no other demands for medical assistance is not self-evidently an improper discrimination.” (Tayag v. Lahey Clinic Hospital)

The court found an alternate ground for affirming judgment in favor of the Lahey Clinic as well. The 1st Circuit concluded that Maria failed to provide her employer with certification by a health care provider as required for FMLA leave.

“Since nothing in [Rhomeo's primary care doctor's] certificate provided a basis for a seven-week leave and the cardiologist had disavowed the need for any leave, Lahey was justified in denying FMLA leave,” the court said.

- Pat Murphy

patrick.murphy@lawyersusaonline.com