June 27, 2009

Around the web, June 27

• Mark McKinnon, "All arbitration is not created equal" [National Journal "Hotline on Call"]
• They owe it to themselves: "Conn. Supreme Court Orders Trash Utility to Pay Towns $36 Million", though the utility's a quasi-public entity run as a consortium of towns [Connecticut Law Tribune]
• Statute of limitations was just one problem for these Zyprexa plaintiffs, another was how obviously the drug had done well for them [Beck & Herrmann]
• Mark Geistfeld (NYU) on products liability & consumer choice [SSRN, Mass Tort Prof]
• "BPA is the 'Toxin du Jour,' Banning It Means Lawsuits Tout de Suite" [California Civil Justice, Elizabeth Whelan/Forbes]
• With ABA support, Congress hastens to strip away funding curbs on federal Legal Services class actions and law-reform efforts [ABA Journal]

June 12, 2009

Judge Weinstein on mass torts

The federal judge identified more than any other with mass-tort innovation recalls highlights of the field's development in the Cardozo Law Review's new online supplement. Weinstein credits brilliant lawyering with saving the tobacco industry (so far) from ruin, continues to begrudge the consensus of national opinion (as expressed through Congress) its right to cut off the handgun suits, and lays blame in multiple directions for the many failures of asbestos litigation. And he speaks up strongly at several points for judges' obligation to prevent the charging of excessive attorneys' fees. Also of note: "The breast implant litigation was largely based on a litigation fraud."

Weinstein's unrepentantly activist view of the judicial role fascinates, but also "scares the bejeesus out of", Beck & Herrmann. More: AmLaw.

May 20, 2009

Drug-pricing class actions falling short

Recoupment suits by particular payors (such as state governments) have enjoyed much success, but class actions on behalf of drug users generally seeking refunds over allegedly faulty pharmaceutical marketing are losing at the class certification stage, because questions of what would have happened with different or no marketing are too individualized. Beck and Herrmann explain.

May 18, 2009

NY mulls expansion of pharmaceutical liability, cont'd

Beck & Herrmann believe that the supposed justifications for Albany's proposed abolition of the "learned-intermediary defense" (which essentially requires only that prescribing doctors be warned adequately of risks) "in all likelihood ... only serve as a fig leaf for what's really just a hand out to the plaintiffs' bar."Alberto Bernabe defends the proposal. Earlier here.

May 1, 2009

Pharmaceutical marketing and civil RICO

Plaintiff's lawyers have met a rebuff in their continuing quest to turn disputes over drug marketing into wide-ranging cash entitlements.

April 28, 2009

Bailey, Perrin & Bailey and New Mexico vs. Janssen

The Houston law firm has been going around the country lining up contracts to sue drugmakers on behalf of states, and it hasn't been shy about donating generously to state politicians involved in the process. So we may expect that today's WSJ editorial about New Mexico AG Gary King, like its editorial earlier this month about Pennsylvania Gov. Ed Rendell, will be just two installments in an ongoing series. Our earlier coverage: Aug. 19 and Dec. 15, 2008 (Penn.), Oct. 9, 2007 and March 13, 2008 (Ark.). We noted last March that BPB founding partner Don Bailey has been among the most generous contributors to the Democratic Attorneys General Association (DAGA).

April 23, 2009

Medical monitoring: a 50-state survey

Under the controversial theory, as readers will recall, courts are asked to award damages to otherwise uninjured plaintiffs so as to provide for future medical surveillance. Beck & Herrmann survey its current status in each of the fifty states.

April 17, 2009

New York Assembly bill could open pharmaceutical litigation floodgates

The venerable learned-intermediary doctrine protects drugmakers from a great deal of ill-founded litigation alleging failure to warn, by making clear that they've discharged their duty if they adequately warn the doctor who prescribes the compound. But as Beck & Herrmann warn, some folks in Albany would like to change that. A05201/S 3157 is sponsored by Assemblymen Richard Brodsky (D-Westchester) and Harvey Weisenberg (D-Nassau).

April 9, 2009

Off-label prescribing of drugs

Albany Law School just hosted a symposium on the topic. Earlier here (and many other posts).

April 7, 2009

Lawyers' Vaccine Court bills

Investigative blogger Kathleen Seidel has been doing more digging.