September 28, 2013

162017_132140396847214_292624_nOn September 26, 2013, after less than one day of jury deliberations following four weeks of trial, a Baltimore jury calculated its award in the total amount of $1,765,000 in favor of the plaintiffs in their product liability lawsuit against the large pharmaceutical company Takeda Pharmaceuticals (“Takeda”). The wrongful death lawsuit alleged that Takeda negligently failed to warn physicians that its diabetes drug, Actos, could cause bladder cancer.

The jury’s determination of damages ($330,000 in noneconomic damages and $295,000 in past medical expenses to the estate of the man who died from bladder cancer following taking Actos, $540,000 to the man’s widow for her noneconomic losses due to her husband’s death, and $200,000 to each of the man’s three children) was short-lived because the jury also found that the man had contributed to his death by negligently failing to exercise reasonable and ordinary care for his own health due to his history of smoking, which negated the award.

The Baltimore family sought $10 million in their state lawsuit against Takeda that alleged that Takeda ignored the results of clinical tests that showed a link between the use of Actos and bladder cancer. Takeda argued that the clinical tests were statistically insignificant and that there was no credible scientific evidence linking Actos to bladder cancer. The Baltimore jury nonetheless found that Takeda negligently failed to warn doctors concerning the link between Actos and bladder cancer.


So Why Was The Maryland Jury’s Calculation Of Damages Given No Effect?

Maryland first adopted the doctrine of contributory negligence in 1847: “The established doctrine now is, that although the defendant’s misconduct may have been the primary cause of the injury complained of, yet the plaintiff cannot recover in an action of this kind, if the proximate and immediate cause of the damage can be traced to a want of ordinary care and caution on his part. Under such circumstances he must bear the consequences of his own recklessness or folly.”

From 1966 to 1982, the Maryland General Assembly had considered twenty-one bills seeking to change the contributory negligence standard but none of the bills were enacted. The latest court challenge to the contributory negligence doctrine in Maryland resulted in the Maryland Court of Appeals’ (Maryland’s highest appellate court) opinion filed on July 9, 2013 that acknowledged that although it has the authority to modify the common law contributory negligence doctrine in Maryland, “… the General Assembly has continually considered and failed to pass bills that would abolish or modify the contributory negligence standard. The failure of so many bills, attempting to change the contributory negligence doctrine, is a clear indication of legislative policy at the present time … The General Assembly’s repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence … It is well settled that, where the General Assembly has announced public policy, the Court will decline to enter the public policy debate, even when it is the common law that is at issue and the Court certainly has the authority to change the common law.”

The Maryland Court of Appeals held, “For this Court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly’s repeated refusal to do so, would be totally inconsistent with the Court’s long-standing jurisprudence,” and therefore the Court of Appeals declined to do so.

Forty-six states in the U.S. have abandoned contributory negligence in favor of comparative negligence (only four states – Alabama, Maryland, North Carolina, and Virginia – and the District of Columbia continue to apply contributory negligence). Twelve states have abrogated contributory negligence by judicial decision. Two state courts (Illinois and Missouri) adopted comparative negligence by judicial decision after deciding explicitly to defer to legislative action in an earlier decision. The Alabama Supreme Court is the only court to revisit the adoption of comparative fault after deferring explicitly to its legislature (which remained inactive) and reaffirm the continued vitality of contributory negligence.

Source: James K. Coleman v. Soccer Association of Columbia, et alClick here to read the opinion.

What Is Comparative Negligence?

Comparative fault comes in two main forms: pure and modified. Under a pure comparative fault system, a contributorily negligent claimant’s damages will be reduced based purely on his or her degree of fault (expressed as relative percentages of 100%), regardless of whether the claimant is as much or more at fault than the defendant. A modified comparative fault system, by contrast, prohibits a claimant from recovering any damages if his or her relative degree of fault exceeds a certain threshold.


If you or someone close to you suffered serious harms as a result of medical malpractice in Maryland or in another state in the U.S., you should promptly seek the advice of a Maryland medical malpractice attorney or a medical malpractice attorney in your state who may assist you with your medical malpractice claim.

We can connect you with Maryland malpractice lawyers (or malpractice lawyers in your state) who can investigate your malpractice claim for you. Click here to visit our website or call us toll-free at 800-295-3959.

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