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Vioxx/Drug LitigationJune 30, 2010State of Louisiana loses Vioxx caseRussell Jackson has details; Louisiana essentially brought a lawsuit with vague allegations of wrongdoing but no evidence that their was any causal relationship to any economic harm the state allegedly suffered. The federal court decision involved the sort of parens patriae lawsuit that the SPILL Act is trying to send back to state court. Posted by Ted Frank at 10:41 AM
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June 17, 2010Product liability hurting consumers dept.Fallout from the ludicrous $356 million Teva Pharmaceuticals verdict (and earlier): Teva is announcing that it "will stop production of its sedative propofol, which many worry will intensify an already existing shortage of one of the most widely used anesthetics in the United States." [Simons via Overlawyered] Propofol is also one of the safest anesthetics, so consumer safety is hurt as well. It's a shame when trial lawyers put profits ahead of people. (It's possible that problems at a manufacturing plant also contributed to, or even are the sole cause, of the decision: Teva has only cited "business reasons." However, propofol is a generic drug with low margins sold for a low price, so outsized jury verdicts threatening to extract the entirety of a company's profits over one low-margin drug in its portfolio surely can't be a positive factor.) Posted by Ted Frank at 5:13 AM
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May 24, 2010Desert Shadow Endoscopy Center, Teva, and Baxter Healthcare: that $500 million punitive damage award in NevadaCarter's account actually understates how outrageous the verdict—and the behavior of the elected judge who permitted this case to get to a punitive damages verdict—was. First, it is important to recognize the wrongdoing of the Desert Shadow Endoscopy Center that infected as many as 115 people with Hepatitis C. Abandoning basic medical practices such as sterilization and not reusing needles was part of the Center's business model, which borders on, and perhaps was, criminal behavior; the doctor involved surrendered his medical license. The idea that a different warning label would have changed the behavior of the Center is simply insane: even homeless heroin users know not to reuse needles, and so do nurse anesthetists averaging over $100,000 a year. They simply chose to disregard the warning for their own benefit. Second, as the Abnormal Use blog documents, much of the jury's anger against the innocent bystander reflected a Cartmanesque petulance that the defendants failed to kowtow to the jury enough: Teva Pharmaceuticals didn't send an executive to monitor the trial, and Baxter Healthcare's executive offended the jury by "stammering" on the stand. As I've noted elsewhere, it is a severe problem for American business if it becomes more important for executives to be skilled in giving smooth-tongued legal testimony than in running a business. When the consequences are risk of multi-million dollar liability for a $20 vial of medicine plus punitives damages, the game-show nature of our litigation system becomes readily apparent. Even if and when punitive damages are reduced to a reasonable multiple, the two defendants are facing hundreds of millions in potential liability because of the volume of cases. Note that the Desert Shadow Endoscopy Center case has led to calls for reversal of Nevada's medical malpractice reforms. This is a red herring. Current law was sufficient to bankrupt the doctor involved as well as all of his businesses. Uncapping damages would make no difference what victims could collectively recover from the culpable defendants. Posted by Ted Frank at 6:25 AM
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May 6, 2010Merck v. ReynoldsLast week, the Supreme Court bucked the stereotype propounded by liberals that it is in the pocket of big business by unanimously affirming a Third Circuit opinion on the timing of the statute of limitations in a securities suit. The suit alleged a breach of duty over the disclosure of Vioxx problems; Merck had argued (successfully in the district court) that the statute of limitations started to run in September 2001 when there were first signs of trouble with Vioxx, putting plaintiffs on inquiry notice—am argument at some tension with Merck's position in product liability litigation that Merck had no reason to act in response to those same September 2001 intimations of potential trouble. The Washington Legal Foundation takes issue with the decision, but I'm less troubled, both as a matter of law, and as a matter of policy. The PSLRA establishes a reasonably high bar for bringing a complaint under the securities laws; conclusory allegations are supposed to be dismissed. Defendants can't expect to have it both ways with a higher standard for bringing a complaint but a lower standard for running the statute of limitations. A rule establishing inquiry notice triggering the statute of limitations would reestablish the race to the courthouse and prompt any number of meritless lawsuits. That's not to say that the current securities lawsuit is meritorious—and as a member of the putative class, I will scrutinize very closely any proposed settlement... Posted by Ted Frank at 5:53 AM
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April 27, 2010Around the web, April 27
Posted by Walter Olson at 12:17 AM
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April 23, 2010CNBC "American Greed"The series tackles the Kentucky fen-phen scandal. Posted by Walter Olson at 12:02 AM
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April 19, 2010The FDA and the responsible corporate officer doctrineIn a paper for WLF, Brian Stimson describes the Food and Drug Administration's plans to step up its usage of a federal law under which the government can effectively end the career of high-level drug company executives who were in a position to have stopped improper marketing and labeling of compounds, even if the execs did not have knowledge or intent of underlings' violations. The offense of "misbranding" has been characterized as a strict-liability misdemeanor and does not incorporate a mens rea requirement. More here. P.S. Also, the Washington Legal Foundation has just launched a new blog (or blog-like entity, at least) called Legal Pulse. Welcome! Posted by Walter Olson at 7:59 AM
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April 9, 2010Nagareda on mass tort settlements and client consentVanderbilt lawprof Richard Nagareda, guestposting at TortsProf: ...In recent years, a new arrangement has emerged, to the point of spawning what is now an emerging scholarly literature about its operation and legitimacy. The 2007 settlement arrangement used to resolve mass tort litigation over the prescription pain reliever Vioxx exemplifies this new development. The Vioxx deal is striking in that it did not actually resolve a single extant Vioxx claim. The contracting parties were not the defendant manufacturer Merck & Co. and any individual Vioxx plaintiff. Rather, the contracting parties consisted of Merck and the small number of law firms within the mass tort plaintiffs' bar with significant inventories of Vioxx claims. ... For critics, the Vioxx deal exemplifies a deeply troubling trend toward the exalting of closure in mass torts to the detriment of legitimate consent. The law firms agreed to "recommend" settlement to all their clients and, increasing the pressure, to withdraw representation from holdout clients to the extent permitted by legal ethics. Another step toward recognizing the lawyers as parties in interest to at least as great an extent, if not more so, than their clients? Posted by Walter Olson at 12:04 AM
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April 2, 2010Around the web, April 2
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March 31, 2010Around the web, March 31
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March 22, 2010Around the web, March 22Food and drug edition:
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March 13, 2010"Thimerosal-autism test cases dismissed"Kathleen Seidel has details of another advance for vaccine sanity. Posted by Walter Olson at 12:19 AM
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Authorities on everythingSome expert witnesses that get hired in liability cases remind Beck & Co. of the shtick of comic "Professor" Irwin Corey [Drug & Device Law] Posted by Walter Olson at 12:09 AM
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February 24, 2010Creative RICO suits over pharmaceutical marketingBeck et al explain how a four-justice opinion by Chief Justice Roberts last month in Hemi Group, LLC v. City of New York might (if we're lucky) help close the door on them. Posted by Walter Olson at 12:17 AM
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February 22, 2010"Keep Michigan law granting lawsuit protection to pharmaceutical firms"The Detroit News editorializes: "If the governor is interested in diversifying the state's economy, she will drop this sop to the trial lawyers." Posted by Walter Olson at 12:07 AM
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February 19, 2010Around the web, February 19
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February 18, 2010Conte doesn't travelBeck et al report that the California decision holding the maker of an original drug liable for damages done by a generic version has not had a vigorous afterlife as precedent: "no court anywhere has followed [it]." Posted by Walter Olson at 6:31 AM
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February 10, 2010Around the web, February 10
Posted by Walter Olson at 12:10 AM
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January 30, 2010"MMR scare doctor 'acted unethically', panel finds""The doctor who first suggested a link between MMR vaccinations and autism acted unethically, the official medical regulator has found. ... [Panel chairman Dr. Surendra Kumar] also said Dr Wakefield should have disclosed the fact that he had been paid to advise solicitors acting for parents who believed their children had been harmed by the MMR." [BBC] More coverage: Kathleen Seidel, Ronald Bailey/Reason "Hit and Run", Liz Ditz, more on MMR vaccine and litigation. Posted by Walter Olson at 12:08 AM
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January 29, 2010Around the web, January 29Tour of the states edition:
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January 28, 2010"Lawyers behind lame Digitek claims face punishment" "U.S. District Judge Joseph Goodwin plans to punish lawyers who filed worthless claims against Mylan Pharmaceuticals and Actavis Totowa." Defense lawyers spent more than $100,000 establishing that some plaintiffs who claimed injury from the heart medication had other causes of death listed on their death certificate, and at least one lawyer admitted that his client had never used the drug. [Korris, WV Record] Posted by Walter Olson at 12:09 AM
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January 13, 2010Around the web, January 13
Posted by Walter Olson at 12:10 AM
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December 31, 2009AAJ's convention in Maui: med-mal, corporate greed and clip artThe American Association for Justice is holding its winter convention in Maui at the end of January. The AAJ semi-annual gathering was in San Francisco last summer and attracted many national political figure amid the congressional debate on health care legislation, including Speaker of the House Nancy Pelosi. It's hard to imagine a similar roster of high-level political speakers for the winter confab: What elected official dares the elitist political imagery of hanging out in Maui? We assume the Senate and House Democrats will be still working out a "compromise" version of the health care bill even as the trial lawyers meet in Hawaii. Expanding medical liability is definitely on the AAJ's agenda for the convention. (See the convention brochure and CLE listings.) The track we found interesting -- the pharmaceutical industry remains a target despite the congressional protection it negotiated? -- and amusing for its seminar-ese was the February 2nd session, "Pharmaceutical Litigation": Allegories and Analogies of Corporate Greed (ethics credit)
Posted by Carter Wood at 4:10 PM
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December 28, 2009Around the web, December 28
Posted by Walter Olson at 6:59 AM
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December 21, 2009A Staten Island magnet court for Oxycontin?Russell Jackson doesn't think New York's interests, or those of justice itself, are well served by using a state court in Staten Island to resolve the claims of more than 1,000 out-of-state plaintiffs against a Connecticut drug manufacturer. Posted by Walter Olson at 1:01 AM
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December 18, 2009Top Ten lists -- and Mark Herrmann departs bloggingRandy Maniloff is back with his annual survey (PDF) of the top ten insurance coverage decisions. At Drug and Device Law, James Beck offers the "Top Ten Worst Prescription Drug/Medical Device Decisions Of 2009". And speaking of Drug and Device Law, co-blogger Mark Herrmann is departing both the blog and the field of drug litigation to take over as vice president and chief counsel-litigation of Aon, the giant insurance brokerage firm. You can read his farewell post here, and Beck's intrepid vow to carry on without him (but with some additional Dechert blogging talent) here. Plus: reactions. Posted by Walter Olson at 12:35 AM
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December 15, 2009"Off-Label Promotion and False Claims"Beck & Herrmann note an Eleventh Circuit case at the intersection of FDA pharmaceutical regulation and qui tam litigation. Posted by Walter Olson at 12:13 AM
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December 14, 2009Around the web, November 14
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December 2, 2009Hood rebuffed in Zyprexa case"Calling Mississippi Attorney General Jim Hood's lawsuit against Eli Lilly & Co. a 'slash-and-burn style of litigation,' the federal judge overseeing Zyprexa lawsuits has granted Lilly summary judgment." [LNL] [Judge Jack] Weinstein wrote that a ruling in favor of Mississippi could have been dangerous. Judge Weinstein did leave alive one of the state's claims. The drug maker has paid to settle the claims of numerous other states, many of them represented (as was Mississippi) by entrepreneurial Houston law firm Bailey Perrin Bailey. More: Beck & Herrmann, Longstreth/AmLaw Litigation Daily. Posted by Walter Olson at 9:19 AM
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November 23, 2009Around the web, November 23
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