Articles Posted in Litigation

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Donald Trump’s hair reportedly turned orange by a Just for Men hair product.  This is probably a serious thing to Trump, but less so to the rest of us.

But there is a real concern about these Just for Men products.  An increasing number of men are reporting severe allergic reactions to “Just For Men” hair and beard products. The reactions include burning, difficulty breathing, dizziness, faintness, hives, rash, redness, scarring, and swelling.

The reactions are being reported not just by new users, but also by long-time users who had previously never experienced any problems. The hair product reactions are so severe that some users had to go to the emergency room, or even be hospitalized. Many users needed antibiotics and steroids to treat the reactions.

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It is hard to make sense of the Fresenius dialysis debacle. People have been hurt – the most vulnerable among us – and it could have been so easily prevented. What I try to do below is lay out what happened and explain what I believe the future of these lawsuits to be.

Fresenius Medical Care is the nation’s largest provider of dialysis treatments, with over 130,000 patients. Their dialysis facilities use GranuFlo and NaturaLyte acid dissolution products in treatments, which are products created by Fresenius. Countless non-Fresenius dialysis centers also use those products, which are sold by Fresenius. Defects in those products are terrifying not only because of the harm they could cause but because Fresenius has such a ridiculously high market share. This is not a product people want, it is a product they absolutely need.

Dialysis and Kidney Disorders: Background

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A New Jersey judge in the Aredia/Zometa state court cases found that a Zometa plaintiff’s lawsuit had been dismissed, applying Virginia’s statute of limitations.

The case’s facts are, like many others in the Aredia/Zometa cases, sad. Plaintiff, a Virginia resident, developed osteonecrosis of the jaw after allegedly receiving infusions of Zometa.

Everyone agreed that Virginia’s substantive law applied. The court found that, if the substantive law of Virginia governs plaintiff’s damage claims, the defendant may assert applicable affirmative defenses under Virginia law.

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Abnormal Use interviewed University of Maine School of Law professor Jennifer B. Wriggins in a blog post last week. Professor Wriggins is best known for her book “The Measure of Injury: Race, Gender, and Tort Law” which talks about how tort law does not provide full redress for injuries to women.

Professor Wriggins was asked by Abnormal Use, “What rule or concept in modern torts or products liability jurisprudence do you believe is the most outdated, and why?”

Now that is a really good question. My first answer would probably be contributory negligence, which is also touched on in this interview. Professor Wriggins said she thought the most antiquated idea might be not telling the jury of the existence of liability insurance, even though the likelihood is that most of them know or suspect the defendant has insurance:

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The Drug and Device Law Blog has an articulate rant about plaintiffs’ lawyers jerking around defendants on whether certain documents produced should be deemed confidential. The core of their argument is that plaintiffs’ interests in the battle over confidential documents are either for (1) sport or (2) to shop documents obtained in discovery to the press.

There is some measure of truth to almost the entire post. But it is as if Tiger Woods told the following story: “I was looking forward to a nice Thanksgiving weekend with my family but on Sunday my wife just left. Didn’t say goodbye or anything.” That’s a true story.

Similarly, the Drug and Device Law Blog leaves out a little fact of the story: mass tort defense lawyers are the undisputed kings of making plaintiffs’ lawyers work for pure sport. Plaintiffs’ lawyers in drug and device cases largely just want to get from Point A to Point B as quickly as possible. I think this is a function both of the personality types attracted to these very different jobs (and I’ve done both) and fundamental economics: plaintiffs’ lawyers get paid for success while defense lawyers get paid for working, even if they are just creating work.

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According to the Maryland Intellectual Property Law Blog, Maryland has seen only 10 patent lawsuits in 2010. Incredibly, there have already been 265 patent lawsuits in Texas. There are more patents in Texas than in Maryland. Maryland inventors received almost as many patents in the first half of 2010.

Drug companies, who are anti-lawsuits until they want to file one, are frequently parties in patent lawsuits involving one drug company accusing another of reverse engineering or copying of drugs.

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Ethics-Definition-05-25-10.jpgSean Wajert of the MassTortDefense Blog has a post on a court’s denial of a plaintiff’s ethics expert in an OBTape MDL pending in Georgia. We routinely disagree with Sean’s blog (we’re on different sides of the aisle, of course), but there isn’t much disagreement with this post.

Disclaimer: I haven’t been following the OBTape litigation too closely, so all my information is secondhand.

The plaintiffs hired a business ethicist, Professor Ann Buchholtz, to testify that the product manufacturer should have provided certain information about the product to physicians and consumers. This is essentially a failure to warn claim. The problem with hiring a business ethicist (who, apparently has no particular expertise in medical devices or medical ethics, which arguably could alter the analysis) is that she is unnecessary. A jury is tasked with determining whether a company failed to warn about specific dangers. Having an expert say what is “ethically” required is merely an attempt to substitute an expert’s opinion for that of the jury. And the danger is that the opinion comes cloaked in the guise of expert testimony, so a jury might be more willing to accept the expert’s viewpoint.

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Accutane-02-18-10.jpgTwo contrasting Accutane lawsuit updates in the news today:

First, Some Background: Accutane is used to treat severe acne, and has been associated with a host of problems: birth defects, inflammatory bowel disease, injuries to the liver, kidneys, nervous system and pancreas, dermatological reactions, and even suicide. Roche stopped selling it last year after a 27-year run, citing competition from generics and the 5,000 pending Accutane lawsuits.
Plaintiff’s Verdict: $25.16 Million: In May 2007, Andrew McCarrell emerged victorious in a New Jersey Superior Court Accutane lawsuit against Roche Holding AG. Mr. McCarrell developed inflammatory bowel disease, caused by the Accutane. (View the entire original trial on video, purchase required). That victory was short-lived, as the verdict was appealed and overturned because the trial judge should have allowed the defendants to present statistical evidence—that there were five million users of the drug.

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Lancet-Autism%202-02-04-10%29.JPGThe Lancet has retracted [free subscription required] the 12-year-old article connecting autism to MMR (measles, mumps, and rubella) vaccinations. The Lancet stated:

Following the judgment of the UK General Medical Council’s Fitness to Practise Panel on Jan 28, 2010, it has become clear that several elements of the 1998 paper by Wakefield et al1 are incorrect, contrary to the findings of an earlier investigation. In particular, the claims in the original paper that children were “consecutively referred” and that investigations were “approved” by the local ethics committee have been proven to be false. Therefore, we fully retract this paper from the published record.

Click here for the original article, “Ileal-lymphoid-nodular hyperplasia, non-specific colitis, and
pervasive developmental disorder in children
” (emblazoned with a bold, red typeface “RETRACTED”).
Here’s a summary of the posts on the internet and blogosphere:

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