Drug Recall Lawyer Blog

MassTortDefense Blog posted about the U.S. Supreme's Court decision to not hear a punitive damages case, Wyeth v. Scroggin.

In the first trial, bifurcated on liability and damages, the jury held the drug company responsible to the tune of $2.7 million in compensatory damages, and then $19.4 million in punitive damages. Appeals predictably followed, and the U.S. Court of Appeals for the Eighth Circuit overturned the punitive damages award based on some evidence that should not have been permitted. That court then ordered a new trial on punitives, only.

The issue that some wanted the Supreme Court to decide was whether a new trial on punitives alone was okay, or whether the entire trial had to be redone.

On the one hand, it seems a little difficult for a jury to get the full scope of a defendant's malfeasance without redoing liability, as well. But, the lawyers trying these hormone therapy cases are a resourceful bunch, and I'm sure they can do it. It's just sad that a new jury won't have the benefit of the same amount of time detailing all of the drug company's missteps.

On the other hand, the plaintiff has already proven her case, at least on the fundamental level of liability and causation and (non-punitive) damages. To make her retry the whole thing would be cruel, and would certainly lack judicial economy. Furthermore, to take that away when the initial non-punitive process was without judicial error would be inappropriate even according to the rules of the playground.

One sidenote--the author of the blog stated that:

The case involves a woman who allegedly developed cancer after taking hormone therapy drugs. (The FDA continues to approve the drugs as safe and effective.)

Actually, the case involves a woman who has proven that she developed cancer because of hormone therapy drugs. And, to say that the FDA continues to approve the drugs as safe and effective is a gross oversimplification. Sure, they are safe when used properly. Doctors didn't have the right warnings at the time, and now they are used more frequently with the "lowest effective dose." After all of the studies that have been done, you can't deny that hormone therapy drugs causes breast cancer. Well, you could, but if you are, you are probably a drug company executive...

The Supreme Court rejected Pfizer’s appeal in the Scroggins case, where a jury rendered a compensatory damages verdict of $2.75 million. Pfizer wanted the Supreme Court to order a new trial on the entire case—compensatory and punitive damages, as well as causation. The trial jury decided on $27 million for punitive damages, and Pfizer will get a new trial on that.

Wyeth has lost seven out of eleven cases (at the trial level) since 2006.

For more on the hormone therapy backstory, see our prior Drug Recall Lawyer Blog posts.

Here are this week’s stories:

• Blood Products: The FDA hit the Red Cross with $16.2 million in fines for blood safety violations. Maybe I should take my donations to the local hospital, instead…
• Hormone Therapy: Pfizer needs to get ready to try its hormone therapy cases all over the country, now that cases have been sent from Arkansas to their home states (with more awaiting transfer). Some think the upcoming cost will be an incentive for settlement. (HT: Bloomberg).
• Zimmer: The New York Times reports on a fallout between Zimmer and its former consultant, Dr. Richard Berger, over failed knee implants.
• CT Radiation: More on the CT radiation overexposure issue.
• Digitek: The Drug and Device Law Blog reports on more problems with the Digitek cases.

Happy first day of summer!

Since Monday, there have been decisions in two hormone therapy cases. Here are the details:

Monday, February 22-Audrey Singleton: In the Philadelphia Court of Common Pleas, a jury found for the Plaintiff and against Pfizer/Wyeth. The verdict, which came after a four-hour deliberation, was for $9.45 million ($3.25 in compensatory damages and $6 million in punitive damages, with $200,000 to the plaintiff’s husband for loss of consortium). The plaintiff was on hormone therapy for six years, before being diagnosed with breast cancer, which is currently in remission. Notable about this case is that the plaintiff was on hormone therapy for about a year and a half after release of the WHI study showing that Prempro increases the risks of cancer. Plaintiff’s lawyers stated that this verdict confirms Wyeth’s actions after release of the study were irresponsible and negligent.

Wednesday, February 24-Cheryl Foust: Also in the Philadelphia Court of Common Pleas, this case was a defense verdict after six hours of deliberations, on the basis of specific causation. We linked to this case previously—it is the one where plaintiff’s twin sister also took hormone therapy, but did not get breast cancer (both argued that this fact supported their position). Plaintiff was successful in convincing the jury that Wyeth was negligent by not properly warning Ms. Foust’s health care providers about the risks of Prempro, and that the failure caused the health care providers to prescribe the drug to Foust. However, the jury found that the drug did not cause her breast cancer. Ms. Foust succumbed to her cancer at the age of 56; the case was brought by her widower.

As far as jury trials go, Pfizer has lost seven of the past 11. Many cases are up on appeal, and there are still something like 1,500 left to go in Philadelphia. Click here for prior blog posts on hormone therapy drug lawsuits.

Here are the stories we're following:

• Levaquin: NJ.com reports that Levaquin manufacturer Johnson & Johnson may have paid millions in kickbacks to a large pharmacy for prescriptions to nursing home patients. The complaint was filed by the U.S. Attorney in Boston.
• Acetaminophen: An article published in the medical journal Thorax ScienceDaily reports that there may be a direct link between use of acetaminophen during pregnancy and child asthma.
• Twombly/Iqbal Statistics: The Federal Judicial Center has collected preliminary data on motions to dismiss before and after Twombly and Iqbal (hat tip: The Civil Procedure and Federal Courts Blog).
• Prempro: Bloomberg discusses Judge Ackerman's reduction of the Connie Barton punitive damages verdict (by 93%, from $75 million to $5.6 million) and added $1.2 million in interest to the jury's compensatory damages verdict of $3.7 million.

Happy Monday!

Here are links to some stories we’re following:

• Hormone Therapy: New Philadelphia hormone therapy case proceeds to trial, and the plaintiff’s twin sister, who sits in the courtroom and took a different type of hormone therapy, did not have cancer. Both sides try to use it to their advantage
• Ortho Evra MDL: The judge addresses the issue of plaintiff ex parte communication with treating physicians (HT MassTortDefense Blog)
• Digitek: Bad news for some plaintiffs’ lawyers in the Digitek lawsuits (HT Overlawyered)
• Social Media and Drug Companies: Several drug companies have banded together to comment on the FDA’s proposed policies on promotion of medical products using the internet and social media (HT Pharma Marketing Blog)

Happy February!

Instead of doing our usual Monday Drug Blog Round-Up yesterday, we opted for a fuller post on the recent plaintiffs’ pain pump victory in Oregon. For more on that story, see the Oregonian. So, today we’ll bring you the links to the stories we’re following:

• Direct-to-Consumer Advertising: FiercePharma lists the top ten drugs for percentage of web-based traffic from DTC ads. YAZ is seventh, even “better” than Viagra.
• Radiation Therapy Malpractice: Pat Malone reports on the dangers of technology, training and procedures in radiation therapy: “Scott Jerome-Parks suffered terrible radiation burns to his neck, and lingered for two years in agony before dying, because he received a seven-fold overdose in the radiation that was supposed to treat his tongue cancer, on three separate occasions.”
• FDA Chastises GE: The FDA warns GE that its website for Visipaque is misleading. Visipaque is a drug used with x-rays to provide clearer images, and the FDA reports that there is no data showing it to be safer than other contrast agents. GE is currently facing lawsuits on it’s MRI contrast dye, Gadolinium.
• Meridia: Tom Lamb and the Drug Injury Watch report on a possible Meridia drug recall.
• Glaxo and Merck Disclose (Hide?) Payments to Doctors: The TortsProf Blog cites a story about Glaxo and Merck publicizing the money they give to doctors. The blog reports that the disclosure lists were “difficult to locate.”
• Hormone Therapy: Bloomberg reports that a judge denied Pfizer’s attempts to forcibly remove a YouTube video on hormone therapy, posted by Plaintiffs’ attorneys. The judge did, however, require the attorneys to rename the video and indicate it was not a news segment (which was obvious from watching the video). See the video here.

Happy Tuesday!

Judge Sandra Mazer Moss ruled in the Philadelphia hormone therapy cases that plaintiffs’ expert witness testimony was admissible, contrary to defendants’ assertions that the testimony was novel, and that the conclusions used by the experts relied on differential diagnosis. The Judge held that “I am not convinced by a preponderance of the evidence that differential diagnosis . . . is novel science.” FYI, differential diagnosis, a process of elimination, is a fundamental means of diagnosis taught by all medical schools. Therefore, the evidence will be admissible, and defendants may attack it in front of a jury.

The ruling applies to the majority of Philadelphia’s Court of Common Pleas hormone therapy cases. One new hormone therapy trial started yesterday, and another will commence next Monday.

Back in June (Statistics, Part I), we reported on the U.S. Department of Justice’s Civil Justice Survey of State Courts, covering 2005 state court trials. Though official statistics have not been released by the DOJ for 2006 to 2009, a recent Bloomberg article, Jurors Turned Against Companies in 2009 Product-Defect Cases, analyzes last year’s product liability verdicts through the lens of the recession and general consumer distrust of Big Business.

The reporter, Margaret Cronin Fisk, notes the following for 2009 product liability lawsuits (which were not limited to just state courts):

• The top 5 product defect verdicts were 52% larger in 2009 (at $620 million), as compared to 2008
• The largest 2009 product defect verdict was for $300 million (Altria’s Philip Morris was the defendant in tobacco litigation)
• 5 of the 50 largest verdicts in 2009 were for defective products (compared to only 1 in 2008)
• In 200, 10 of the 50 largest verdicts were for defective products.

In 2005 state courts, there were 346 product liability trials, 28 of which were for drugs or medical devices. Excluding asbestos cases, plaintiffs won 19.6% of product liability trials in 2005. Also interesting, is that in 2005, 10.2% of all tort cases in Philadelphia were product cases (this is a trend that likely continues, in large part because of the hormone therapy cases). The only other county with a higher percentage was San Francisco, at 12.7%.

I’d love to get my hands on the raw data used by the DOJ—it would be interesting to compare the largest product liability verdicts from pre-recession 2005 with those reported by Bloomberg for 2009. That data must be on the internet somewhere…

Here are some of the stories we’re following this week:

• Janumet: Shearlings Got Plowed reports that the FDA is revising the label for Janumet to warn about pancreatitis. A link to the FDA’s prescribing information is here
• Seroquel: Tom Lamb reports on the difficulties that plaintiffs are facing in these cases, of late. It seems that the odds are against us and the situation is grim—a good time for a reversal
• Prempro: NPR reports on the marketing masquerading as research by drug-makers trying to profit from menopause
• Levaquin: The Mass Tort Defense blog reports on the status of the bellwether trials: consolidation rejected
• Conflicts of Interest: The New York Times reports that Pfizer gives $3 million to Stanford University for creation of continuing medical education courses, where Pfizer has no say on what the money is spent for. Does this prevent conflicts of interest or is it “self-satirizing?”

Happy Monday!

The Associated Press reports yesterday's decision by the 8th U.S. Circuit Court of Appeals (St. Louis) that overruled a 2008 federal district court opinion precluding remand of hormone therapy suits to Minnesota state court. The appellate court also held that the dismissal of lawsuits then pending in Little Rock was erroneous. The holding was premised on jurisdictional grounds--the cases, pending in state court, could not properly be dismissed by the federal judge. This ruling gives hope to over 100 women and their families who have thus far been precluded from their day in court.

The full opinion is available on the court's website.