A case before the Nevada Supreme Court aims to open up new vistas of liability. [WSJ Law Blog].
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Posts tagged as:
pharmaceuticals
Sean Wajert on a class action filed against Bayer:
Plaintiffs are consumers who claim to have purchased Bayer combination aspirin and dietary supplement products. They do not claim that they were injured by these products or that the products were ineffective. Instead, plaintiffs seek damages because they say they would not have purchased these products if they had known that Bayer, instead of submitting a New Drug Application (“NDA”) for each of these combination products, relied on the preexisting separate regulatory review of aspirin and the supplements.
More: Ron Miller.
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It’s taking a toll on liberty, per a Janice Rogers Brown dissent [Volokh; Novelty, Inc., v. DEA (PDF)]
An FDA panel’s recommendation to withdraw Vicodin, Percocet, and other opioid-plus-acetaminophen painkillers seems calculated to “sacrifice the interests of consumers who follow instructions for the sake of consumers who don’t”, says Jacob Sullum. ER blog Crass-Pollination has some thoughts as well.
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The news is on the Bloomberg wire. Beck & Herrmann have this to say: “Despite the absence of scientific evidence, juries have repeatedly awarded millions of dollars to folks who developed IBD [inflammatory bowel disease] after taking Accutane. … If you ever need another example of the cost of litigation driving a beneficial drug off the market, add Accutane to your list.” From the Bloomberg account it appears, however, that generic versions of the powerful anti-acne medication will continue to be available — for now, at least.
More: New Jersey Lawsuit Reform Alliance (”If you are reading this and currently taking Accutane, trial lawyers owe you an apology. You just lost your drug.”); a curious 2002 Accutane lawsuit.
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Even in California, you may not be able to sustain a class action lawsuit against a product that worked fine and didn’t harm you [Cal Biz Lit, Drug & Device Law]
Under the holding of a recent court opinion, if you were never prescribed a drug but unlawfully grab and pop pills that had been prescribed to someone else, you (or your estate) can sue the manufacturer anyway for side effects you are said to have suffered. The court did disallow claims for failure to warn, but left standing claims that the drug (fen-phen) posed too high a risk to users overall [Beck & Herrmann, Crowe v. Wyeth, E.D. Pa. applying Missouri law]
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That’s Pennsylvania Gov. Ed Rendell on his no-bid hiring of a Texas plaintiff’s firm (and generous political donor) to sue Johnson & Johnson on contingency fee [Wall Street Journal editorial; Point of Law background here, here, here, here (Arkansas, and Bailey Perrin Bailey's generous donations to the Democratic Attorney Generals Association (DAGA)), here, and here; ShopFloor].
P.S. And more reporting on the case from John O’Brien at U.S. Chamber-backed Legal NewsLine.
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- Driver on narcotic painkillers crashes car, lawyer says pharmacists liable [Las Vegas Review-Journal]
- Who’s that cyber-chasing the Buffalo Continental Air crash? Could it be noted San Francisco-based plaintiff’s firm Lieff Cabraser? [Turkewitz]
- Axl Rose no fan of former Guns N’ Roses bandmate or his royalty-seeking attorneys [Reuters]
- Cheese shop owner speaks out against punitive tariff on Roquefort, now due to take effect April 23 [video at Reason "Hit and Run", earlier]
- Too many cops and too many lawsuits in city schools, says Errol Louis [NY Daily News]
- Law professor and prominent blogger Ann Althouse is getting married — to one of her commenters. Congratulations! [her blog, Greenfield] Kalim Kassam wonders when we can look forward to the Meg Ryan film “You’ve Got Blog Comments”.
- “Louisiana panel recommends paying fees of wrongfully accused Dr. Anna Pou” (charged in deaths of patients during Hurricane Katrina) [NMissCommentor]
- U.K.: “Privacy Group Wants To Shut Down Google Street View” [Mashable]
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My Manhattan Institute colleagues James Copland and Paul Howard are the authors of a just-released paper which proposes comprehensive federal preemption of state product liability drug litigation, combined with a new administrative compensation program for persons injured by unforeseen drug side effects, modeled on the existing vaccine injury compensation program. Their paper is here, and the section on administered compensation begins here. A summary, and early reaction: Medical News Today, Legal NewsLine, their Washington Times op-ed, AmLaw Daily (”makes for interesting reading”), Drug and Device Law (cross-posted from Point of Law).
Now that its settled that every jury should be a new regulator deciding in hindsight whether label warnings should have been stronger, some who worry about the future of the drug business are inclined to feel nauseous. Resist that feeling, points out emergency room blogger White Coat: should your condition grow so severe as to call for medical attention, the arsenal of antiemetic treatments available to doctors keeps dwindling under the legal pressure.
P.S. More: Throckmorton’s Other Signs. And, from before the decision, from Yale-affiliated neurologist Peter McAllister in the Providence Journal.
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After the Wyeth v. Levine argument, I worried that the Supreme Court might decide the case on such narrow grounds that it would do little good to confront the problem of trial-lawyer abuse. I now see I wasn’t nearly pessimistic enough.
We can put the nail in the coffin in the idea that this is a pro-business Supreme Court: the 6-3 Wyeth v. Levine decision is the worst anti-business decision since United States v. Von’s Grocery, 384 U.S. 270 (1966). Justice Thomas’s confused concurring opinion is especially disappointing, as it declares an abdication of the Supreme Court’s appropriate structural role to prevent individual states from expropriating the gains from interstate commerce.
Sell your pharmaceutical stocks now, because the Supreme Court just declared it open season on productive business. One should now fear the coming decision in the as-yet-to-be-briefed Clearinghouse v. Cuomo, and the effect that is going to have on an already battered banking economy, as well.
Beck and Herrmann have first thoughts, but are likely to be relatively quiet thereafter.
Update, as Walter points out in the comments, see also Andrew Grossman’s post at Point of Law, and the earlier coverage at that site by numerous authors, dating back to when the case first began making headlines.
Contrary to the suggestion of Justice Thomas, Dan Fisher, this is not a “victory for federalism” by any stretch of the imagination: federalism is a two-way street, and permitting states to impair interstate commerce through a litigation tax upsets the federalist structure of the Constitution. See, e.g., Epstein and Greve.
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“Pharmaceutical company Biopure Corp.’s defamation and trade libel case against a National Institutes of Health official for his statements in an article co-authored for the Journal of the American Medical Association raises concerns about the litigation risks of scientific discourse.” (Sheri Qualters, “Suit Against Scientific Journal Raises Litigation Issues”, National Law Journal, Oct. 31; MassHighTech; Pharmalot).
- Pics of 50 of the strangest buildings of the world, some look as if Hobbits must live there [Village of Joy h/t @CoolPics] #
- Research drugmaker held liable for misrepresenting drug even though plaintiff took generic [Beck & Herrmann h/t @billchilds] #
- Rep. Rangel can’t find 1 law firm to sift his tax mess that isn’t conflicted (like by being his donor). [NY Post h/t @jeffnolan] #
- Pot/kettle award? RIAA, of kid- and grandma-suing fame, calls adversary vexatious [Kravets, Wired "Threat Level" h/t @VBalasubramani] #
- “Disabled” LIRR retirees also got free lifetime passes to state owned golf courses [A Blog for All] #
Gary Charbonneau had a gambling history, including substantial wins, which devolved into compulsive gambling in 2002. He blames this on his Parkinson’s disease medication, Mirapex, which he started taking in 1997. Mirapex changed its warning label to include reports of a correlation while Charbonneau was taking the drug; Charbonneau’s doctor kept prescribing the drug. Nevertheless, Charbonneau was able to persuade a jury that the failure to warn was what was responsible for his $200,000 gambling losses (much of which came from gambling illegally) and resulting marital troubles. The jury verdict even awarded $8 million in punitive damages, giving a whole new meaning to jackpot justice (though one would expect the trial court to reduce this substantially). The only press coverage of this lawsuit, aside from a handful of blogs (Pharmalot; TortsProf; InjuryBoard), is in an op-ed I wrote for today’s Examiner about the case and about how a Supreme Court case and Congressional legislation could affect it. (Theodore H. Frank, “Jackpot justice gets new meaning,” DC Examiner, Aug. 19).
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Tim Sandefur asks this only half-facetiously as he reviews mass torts. Of course, as a must-read comment letter to FASB (via the indispensable Beck/Herrmann) submitted by six pharmaceutical companies notes, “A mass tort occurs when the plaintiffs’ bar decides to invest in it.”
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The nurse gave the child at least twice as much as the dosage was supposed to be. “Plaintiffs sued everyone in sight” including the manufacturer of the little medicine cup. Would redesigning the little graduated markings on the cup have made a difference? (Beck & Herrmann, Drug & Device Law Blog, Jul. 30).
