Articles Posted in Litigation

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 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 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.

The “Just For Men” website tells users to always first do a patch test before using the product: “Always do a simple skin allergy (alert) test 48 hours before you use your Just For Men product. Do the patch test on the inside bend of your elbow each and every time.” The products include a similar warning.

The culprit appears to be p-Phenylenediamine (PPD), a dye derived from coal tar that helps color hair. The Centers for Disease Control and Prevention (CDC) lists PPD as a contact allergen. It was voted “Allergen of the Year” by the American Contact Dermatitis Society in 2006, a finding that was published in the journal Dermatitis. Its allergic nature was subsequently confirmed by a 10-year review of the allergen in 2011 that was also published in Dermatitis. A Consumer’s Dictionary of Cosmetic Ingredients says that PPD can cause “intense skin irritation and blisters.”

It is always an odd battle of brother v. brother when it comes to MDL fees. The plaintiffs’ MDL steering in most mass tort cases does most of the heavy lifting in getting the cases resolved. No one can argue with this. But the question is how much is that worth?

In the Avandia cases, the court decided that it is worth 6.25 percent of all settlements up to $143,750,000. Is that fair? It is hard to know. Hourly billing rates for common benefit attorneys ranged from $225 per hour to $595 per hour. No doubt, these are particularly easy to inflate and, let’s be honest, there is some bill padding that often goes on in these types of cases. But Glaxo’s lawyers are billing out as high as $825 per hour. That is guaranteed money as opposed to the speculative work that plaintiffs’ lawyers do in an MDL. (Of course, the steering committee also gathers up individual cases in their travels to supplement their pay.)

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:

This is a really good article in the Tulane Law Review that explains the history and theory behind bellwether trials in the MDL.

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.

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.