April 24, 2008

Dr. Egilman responds

Our post on the JAMA articles provoked a response by Dr. David Egilman in the comments-section at Shop Floor:

Continue reading   Dr. Egilman responds

April 23, 2008

Warning of Risk is Unavailing to Drug Maker

News inferno reports that Kamie Kendall, a 24-year-old Utah hairdresser has been awarded $10.5 million by a New Jersey jury for damages to her colon following use of the anti-acne drug Accutane. The trial judge refused to allow the jury to consider punitive damages.

Kendall is the third Accutane plaintiff to successfully sue Hoffman-LaRoche over inflammatory bowel disease. In May, another New Jersey jury awarded $2.62 million in damages to a patient who needed to have his colon and most of his rectum removed after taking the drug Accutane. In October, A Florida jury awarded $7 million in damages to another Accutane user who developed the disorder and said Hoffman-LaRoche failed to adequately warn of the drug's risks.

Kendall started taking Accutane at age 12. She was diagnosed with ulcerative colitis at the age of 14, and in 2006 she had her colon removed and now suffers from debilitating diarrhea.

Hoffman-LaRoche is apparently appealing all three verdicts, and insisted that the link between Accutane and inflammatory bowel disease has not yet been proven. In a possibly contradictory statement, however, the company also said that "the Accutane labeling has contained a warning about IBD for more than 20 years."

Accutane may well go the way of Bendectin....

April 17, 2008

The circle of life (Ortho Evra edition)

• Plaintiffs' lawyers make fictional allegation;
• Friendly New York Times reporters who work in conjunction with plaintiffs' lawyers report fictional allegation as fact, ignoring the underlying facts;
• Plaintiffs' lawyers use bootstrapped New York Times article to argue against sensible preemption policies that would benefit consumers but would hurt lawyers.

April 16, 2008

Vioxx: JAMA publishes litigation-support for trial lawyers

The latest issue of Journal of the American Medical Association publishes two pieces by plaintiffs'-side experts (including the infamous Dr. David Egilman (e.g., Oct. 2007; Dec. 2005; Jul. 2005)) slamming Merck over Vioxx studies. Ross/Hill/Egilman/Krumholz accuse scientists of ghostwriting studies for Merck, but as Merck and Reuters note, Egilman et al. are smearing dozens of scientists without factual basis. As one tells the Washington Post:

Continue reading   Vioxx: JAMA publishes litigation-support for trial lawyers

April 9, 2008

Recent opinion roundup

• Third Circuit affirms preemption in split decision in Colacicco v. Apotex Inc.. [Beck/Herrmann; Legal Intelligencer/law.com via TortsProf; Pharmalot; earlier: Dec. 2007]
• More on McLaughlin v. American Tobacco Co. (Apr. 3) decision. [Scheuerman; Sebok @ FindLaw; NYLJ/law.com; Class Action Defense blog; NY Times; NY Sun]
• Seventh Circuit affirms dismissal of scheme liability allegation. [Pugh v. Tribune Co. via Roberts]
• L.R. writes us: "In Egelhof v. Szulik, 2008 WL 352668 (N.C. Super. Feb. 4, 2008) a NC state court banned Robbins Umeda & Fink (one of the leading plaintiffs firms for derivative suits - Robbins is the brother of the Robbins at Coughlin Stoia) from appearing in NC courts for five years because of their mishandling of a derivative case against Red Hat. Notably, they put up a plaintiff with whom they had had virtually no contact and who was obviously unsuited to bring the case." [Triangle Business Journal]
• Split decision in Tenth Circuit: okay to sue expert for testimony that hurts your case. (The expert changed his mind at a deposition after opposing counsel showed him evidence that the propounding attorney chose to conceal from the expert in soliciting his opinion.) Dissent from recently appointed Judge Gorsuch correctly bemoans effect on truth-seeking function of judicial system. [Pace v. Swerdlow; Overlawyered roundup of links]
• Aside from the Scruggs disqualification, two Katrina decisions, both of them good for the rule of law and contract: Sher v. Lafayette Insurance Co. (La.) reverses court decision declaring flood exclusion ambiguous; Fifth Circuit reverses JMOL and vacates punitive damages in Broussard v. State Farm (see earlier discussion Jan. 2007). (Updated to add: the whole point of this bullet point was to highlight the continued excellent blogging of David Rossmiller, and I somehow failed to do so. Apologies.)
• Perhaps less good for the Rule of Law: SCOTUS rules that Federal Arbitration Act is not sufficiently flexible to permit parties to voluntarily contract for additional judicial review of arbitral decisions. Why the arbitration industry thought this would be a good result is beyond me: the point of arbitration is to permit parties to contractually select rules of decision outside of the default rules, not to create a second inflexible default. [Hall Street Assoc. LLC v. Mattel, Inc.; Sarah Cole on other problems] However, the National Arbitration Forum suggests that a recent Judge Posner opinion, Edstrom Industries, Inc. v. Companion Life Insurance Co., 516 F.3d 546, 550 (7th Cir. 2008), shows that the Hall Street ruling is narrow, because parties have other mechanisms to contract around the limited judicial review to ensure review of legal decisionmaking.

April 5, 2008

"Overwarning, Undercuring"

In City Journal, Marie Gryphon explores the need for preemption if the FDA is to stop the problem of overwarning. (I am quoted.) Earlier: Feb. 25; Jan. 2; Mar. 2006.

March 24, 2008

Riverboat Poker And Paradoxes: The Vioxx Settlement

I have this essay in the March 21 WLF Legal Backgrounder, responding in part to POL blogger Marie Gryphon's earlier City Journal piece:

Poker players learn to read the cards of the other players at the table by their actions. Betting patterns and other "tells" can permit a good poker player to understand the strength of his opponents' cards without ever seeing them. There have been only a handful of Vioxx trials, but the announced settlement of the Vioxx litigation provides strong tells as to the weakness of the plaintiffs' claims--and of the weaknesses of current pharmaceutical product liability law.

March 19, 2008

Linkwrap: former InterMune CEO indicted for wire fraud for off-label promotion

• Beck/Herrmann blog post
• Recorder/law.com coverage
• DOJ press release
• press release by attorney for Scott Harkonen
• 2002 InterMune press release at issue in indictment
• follow-up 2003 InterMune press release on same drug treatment
• 2003 Milberg Weiss motion in related securities litigation; the case settled for $10.4 million in 2005, about 25 cents/share for an $8 stock-drop
• 2008 InterMune press release re indictment
• related 2004 NY Times article about lawsuit by former sales rep
• November 2005 InterMune 10-Q excerpt re pending litigation
• 2006 DOJ press release re related settlement of charges against InterMune
• Settlement of US ex rel. Gallagher v. InterMune
• 2007 InterMune press release discontinuing Phase 3 trials for drug
• Current InterMune website on IPF, which, given current monitoring oversight, presumably passes legal muster.

March 15, 2008

Litigation lobby tries to undo Riegel

Beck and Herrmann have details.

March 3, 2008

Warner-Lambert v. Kent affirmed

In a surprise, an equally divided court affirmed 4-4 without releasing an opinion (Roberts was recused, effectively giving the respondents a fifth vote); the question remains whether Breyer, Scalia, or Thomas was that fourth vote. Earlier: Feb. 2008; Sep. 2007. The decision is non-precedential, so the circuit split between the Second and Sixth Circuits on how to apply Buckman remains. Is Buckman really so easily avoided by clever pleading? Apparently at least four justices think so.

Update: Beck and Herrmann comment.