July 1, 2009

Vicodin and Percocet Recall on the Way?

CNN reports that an FDA government advisory panel voted yesterday to recommend eliminating prescription drugs that combine acetaminophen with narcotics -- such as Vicodin and Percocet -- because of their risk for overdose and for severe liver injury.

I'm glad to see the FDA is looking at the safety and efficacy of existing drugs. There is no question that Vicodin and Perocet are misused and overprescribed. My only fear with a recall or withdrawal of these drugs for what I'm guessing is the 5% of people on Perocet or Vicodin that really need the drug. They are in great pain, are not finding relief elsewhere, and the benefits of the drugs far exceed the risk of overdose or liver damage for that patient.

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June 22, 2009

Product Liability Lawyer Accused of Misconduct

The Courier-Journal in Louisville, Kentucky has an article on an amazing lawsuit in Kentucky in yet another derivative claim of the fen-phen litigation. Plaintiff claims that her lawyers told her that her echocardiogram showed that her heart was "like a tire that might burst” as a result of the use of fen-phen. The claim made by this former paralegal of the law firm is beyond stunning: medical tests were altered to show more heart damage than expected and destroyed test results that were not consistent with plaintiffs’ lawyers’ theory of the case.

The law firm did what a lot of plaintiffs’ law firms do in product liability cases where there is a chance of significant recovery: they offer plaintiff a medical test at no charge which is characterized as an independent medical exam. In this case, the test was an echocardiogram.
As many good stories do in 2009, this one also involves sex and (audio) tape. Plaintiff’s lawyer is accused of telling his client that she needed to “spend some time on [her] back” with him (later in the conversation he said he was kidding), that he wanted to touch her breasts, asking her how many people she had had sex with, and the like. Plaintiff taped the conversations because – get this – her husband did not believe her. The article gives the impression that Plaintiff never really voiced objection to these comments.

Who do you root for in a case like this? Not the lawyer who, on his best day, acted inappropriately in the case. Bar counsel in Kentucky has put on hold its evaluation until after the case, but eventually these claims are going to be heard. But it also hard to root for a Plaintiff who claims the lawyer and his law firm damaged her "mentally and emotionally" and "caused her a great deal of humiliation.” Exactly how much money are allegations like this worth? There is no question that the allegations are very serious. But there is an incredibly important difference between making allegations of serious misconduct and allegations of serious injury.


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June 18, 2009

New Massachusetts Opinion on Duty and Foreseeability

A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts' highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff's police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff's theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a "special relationship" the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.

The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to "an innocent third-party bystander" was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.

Continue reading "New Massachusetts Opinion on Duty and Foreseeability" »

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May 27, 2009

Drug Recall Lawyer Blog

We recently added a sixth lawyer, John Cord, to our team at Miller & Zois. You can read his biography here.

John has started his own blog, the Drug Recall Lawyer Blog. This blog is directed a product liability lawyers handling drug and medical device case in Maryland and around the country. If you find it useful, add it to your list of favorites (as well as the Maryland Injury Lawyer Blog, of course).

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March 23, 2009

Seroquel Study 15

The Washington Post has an article providing more detail on Study 15, the Seroquel study that saw the same fate as many pharmaceutical company drug trials do that the companies don't like: they stick them in their glove compartment - even deeper than I would stick my parking tickets in college. The chickens came home to roost on my parking tickets about 9 months later. AstraZeneca has had this study stuffed away for 12 years.

For the folks that made a ton of money off Seroquel and have since left AstraZeneca, it all worked out just fine, didn't it? Is it that same warm fuzzy feeling I got when I learned that many of the guys that caused the AIG debacle got huge bonuses? No, the feeling is different for two reasons.

Continue reading "Seroquel Study 15" »

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March 4, 2009

Wyeth v. Levine!

Wyeth v .Levine!!!! Plaintiffs' lawyers have seen drug (and medical device) injury victims take punch after punch. But in a huge win for patient safety, the Supreme Court upheld in a 6-3 ruling today that in a Vermont woman's verdict against Wyeth for injuries she suffered after taking one of the drug maker's medicines. Justice John Paul Stevens, writing for the majority, said FDA oversight of drug labeling doesn't prevent the filing of state tort claims.

It is a little bit pathetic that this is a huge win. Gee, the law for the last 90 years is not going to be completely uprooted. Yippy! But the Drug and Device Law Blog predicted victory and those guys have been on the winning side of most everything lately. (A guest Drug and Device Law blogger also broke down the justices individually and predicted victory but I cannot find the post to link to it.) So I'll admit I was more than a little scared. Now, I'm thrilled that even this conservative Supreme Court found decisively in favor of the Plaintiff.

The one downside: a loss may have mobilized Congress to act. This win in Wyeth v. Levine could ironically slow progress on a bill to overturn Medtronic v. Riegel.

You can find an article on the verdict here and comments on Justice Alito's dissent here. You can find the Supreme Court opinion in Wyeth v. Levine here.


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February 2, 2009

Seroquel Lawsuits: Followup to Summary Judgment Ruling in Florida

Last Wednesday, I reported on the Seroquel summary judgment in Florida in the much awaited first Seroquel MDL. The opinion appeared to give AstraZeneca Pharmaceuticals a boost (although there are a thousand variables that are involved in the 1% rise in the stock price – the Seroquel lawsuits are a small piece of the large mosaic that is a major pharmaceutical company) and depress not only Seroquel litigants and their lawyers, but also plaintiffs’ lawyers in drug and medical device litigation, who have had a tough year.

But after reading the order granting the summary judgment in this Seroquel case, the reports of the demise of the Seroquel litigation were greatly exaggerated. This case was decided on its particular facts, and the fact pattern in this case was not advantageous for Seroquel lawyers.

Continue reading "Seroquel Lawsuits: Followup to Summary Judgment Ruling in Florida" »

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January 28, 2009

Seroquel Lawsuit Dismissed

Unfortunate setback today in the AstraZeneca Seroquel lawsuits pending in federal court: two lawsuits set for trial in Orlando next week have been dismissed. This was the first MDL class action trial in federal court, where most of the Seroquel lawsuits have been filed.

The judge’s reasoning for throwing out these Seroquel cases was that the scientific evidence does not “meet the standards" to go to trial. I cannot figure out whether this is a general or specific causation opinion with respect to the link between Seroquel and diabetes. I assume it is the latter because I do not think there is dispute of the link between Seroquel and diabetes.

The Bloomberg article on the ruling mentioned something from one of the plaintiffs' Seroquel lawyers I found particularly odd:

This ruling basically means that there were some glitches in how these two cases were prepared for trial.

I'm sorry? Come again? What glitches? Can we get a little further explanation? Someone needs to clue in reporters in these kinds of cases: it is okay to ask follow-up questions.

I will report more when I learn the exact basis for the ruling. Not much good news for plaintiffs in the drug and medical device world of late.

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January 22, 2009

Preemption in the Media

The Supreme Court's ruling in Medtronic v. Riegel has largely been ignored by broadcast media. But I found a clip from MSNBC's “Countdown with Keith Olbermann” on preemption and President Bush's efforts until the bitter end to push for preemption.

Keith Olbermann's portrait on these things is not exactly "fair and balanced." I think it is a mistake not to present more fully both sides of the argument because it is hard to change minds without presenting all of the facts. But I'm just thrilled to see some broadcast media discussion - albeit MSNBC - of the perils of preemption.

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November 3, 2008

Oral Arguments in Wyeth v. Levine

The Supreme Court Oral Arguments in Wyeth v. Levine are available here. I read about 40 pages of it - more than half - and I hope to finish it tonight.

Is there anyone who even pretends to know how the Supreme Court is going to rule in this case? Potential upside to a broad pro-defendant ruling: Congress and President Obama are mobilized to pass a strong bill that overrules Wyeth v. Levine and Medtronic v. Riegel.

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October 27, 2008

Wyeth v. Levine

The Wall Street Journal has an article today on the oral arguments before the Supreme Court in Wyeth v. Levine. In an unrelated but very related story, The Washington Post had an article from a Republican suggesting that the RNC drop the focus on McCain and turn to salvaging the Senate races.

These stories are related because if the Democrats get to 60 senators, I think Wyeth v. Levine and Riegel v. Medtronic will become a moot point. There are interesting landmarks on the path to 60. The first is the outcome of Ted Stevens’ trial. If Stevens is acquitted, Republicans should hold that seat. Who knew Alaska could have the impact it is having in this election? The second is whether Al Franken can unseat Norm Coleman in Minnesota. I hope Franken wins and, like most of us, I enjoyed Stuart Smalley on "Saturday Night Live." But after reading one of his books, I'm not sure he is a step towards a post-partisan movement. Franken sings the "all conservatives are evil and all liberals are righteous" spiel that the whole country is tired of hearing.

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October 9, 2008

Seroquel Diabetes Lawyer: Attorneys for Seroquel Induced Type 2 Diabetes

There has been evidence since 2002 that drugs in Seroquel’s class caused a 3.34 times greater risk of diabetes than other antipsychotic drugs (which is what Seroquel is supposed to be prescribed for in the first place). In September 2003, the FDA began mandating a warning indicating that Seroquel patients are at great risk for type 2 diabetes.

The Seroquel diabetes class action lawsuit alleges that Seroquel’s manufacturer knew that Seroquel caused a high occurrence of diabetes, but failed to adequately warn doctors or patients of the risk. As is often the case, the other countries' version of the FDA required a more explict warning about the risk of type 2 diabetes with Seroquel. The Japanese warning specifically informing doctors of the need to monitor Seroquel patients. The Japanese label also indicates that Seroquel is contraindicated for use in patients with diabetes or a history of diabetes. In other words, Seroquel's manufacturer felt comfortable providing doctors and Seroquel patients in the United States less information than Japanese Seroquel patients were afforded. Why? Two words: market share. The more bad information about Seroquel that was made available, the less prescriptions - particularly the off-market prescriptions for Seroquel which is where the real money is in Seroquel sales.

Continue reading "Seroquel Diabetes Lawyer: Attorneys for Seroquel Induced Type 2 Diabetes " »

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October 7, 2008

Class Action Lawyers Look at the Spiriva HandiHaler

Our lawyers are now investigating potential Spiriva HandiHaler lawsuits after the Journal of the American Medical Association, underscoring long held concerns, reported that Spiriva HandiHaler users may face increased risk of heart attacks or strokes and other cardiac problems.

The Spiriva HandiHaler (generic: tiotropium bromide inhalation powder) is an inhaler drug used by millions of people with emphysema and bronchitis. The Spiriva HandiHaler was approved in 2004. Along with its cousin Atrovent, which has been around for over 10 years, the Spiriva inhaler is used once or more daily to relax muscles and open airways in a patient’s lungs for patients with emphysema and chronic bronchitis (which are conditions under the umbrella of chronic obstructive pulmonary disease - COPD).

All indications are that both of these products – Spiriva and Atrovent - are efficacious for the purpose of opening the patient’s lungs and facilitating breathing. This new study, however, raised grave concerns that these inhalers could be associated with potentially fatal cardiac conditions. The study looked at other drug trials and found that people taking Spiriva or Atrovent had a 58% higher risk of developing cardiac problems, with far reaching complications including strokes, heart attacks and death.

Stating the patently obvious, a 58% higher level of risk is unlikely to be the product of mere chance. This is particularly true with this JAMA study on Spiriva and Atrovent because this study looked at a number of studies, so the number of patients included in the analysis was large. Approximately 1.8% of the people on either Spiriva or Atrovent in the JAMA study developed fatal or nonfatal heart problems over a period of several weeks to several years. Patients on different drugs or a placebo have only a 1.2% risk.

Yet Boehringer Ingelheim, who manufactures the Spiriva and Atrovent inhalers, and Pfizer, who markets these inhalers, have done their own analysis just days after the JAMA study was released (coincidentally?) analyzing 30 clinical trials that suggest that the Spiriva inhaler does not increase cardiac risks.

To make matters more confusing, the FDA said back in a March MedWatch alert that using Boehringer Ingelheims’s own data from 29 studies of about 13,500 patients found that Spiriva is linked to an excess risk for strokes. Specifically, this data found that there was an excess risk of stroke for 8 patients of every 1,000 taking Spiriva for 1 year, compared to 6 patients of every 1,000 taking a placebo. This data is not as overwhelming as the 58% figure suggested by the JAMA study but it still is cause for concern.

There is no question that many patients with COPD need pharmacological assistance with their disease. Of the 24 million Americans with COPD, less than half are using medication to assist with their condition, which is one reason why we have 100,000 deaths a year in this country from COPD. And there appears to be no question that Spiriva is effective in fighting COPD. But our lawyers’ question is whether Spiriva's warning adequately informed patients of the increased risk of cardiac problems. Did they even modify their label after the FDA’s MedAlert earlier this year? Our lawyers also want to investigate whether Spiriva was properly tested for cardiac concerns, because there are other inhalers available that have not been linked to heart attacks and strokes.

Our lawyers believe there is enough information out there to begin evaluating Spiriva cases with an eye towards a potential class action lawsuit. If you would like to speak to a Spiriva lawyer, call 800-553-8082 or click here for a free Spiriva lawsuit consultation.

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September 18, 2008

NuvaRing Lawsuits: Specific Causation in Drug and Medical Device Cases

Last month, the Judicial Panel on Multidistrict Litigation (JPMDL) created MDL for the 11 NuvaRing lawsuits pending in federal court. Discovery for federal NuvaRing lawsuits – both pending and future - will be centralized for discovery purposes in the Eastern District of Missouri before Judge Rodney W. Sippel. More NuvaRing lawsuits are pending in New Jersey after plaintiffs defeated defendants’ efforts to remove all NuvaRing lawsuits to federal court. (Read more on New Jersey NuvaRing lawsuits.)

These NuvaRing lawsuits involve blood clot-related injuries to women such as pulmonary embolisms, strokes, heart attacks, and deep vein thrombosis (DVT). Because NuvaRing is a birth control device, many of these injuries are occurring in young woman who are rarely at risk for non pharmacological induced blood clots.

The challenge many products liability lawyers face in drug and medical device injury cases is that the patient population using the drug or device is more likely to suffer from the injury allegedly caused by the drug. Many patients on Seroquel, for example, are more likely to have diabetes because Seroquel is often prescribed for older patients (Seroquel is ubitiquous in many nursing homes). These patients are more likely to have diabetes than the general population. So while a plaintiffs’ lawyer might be able to show that Seroquel causes diabetes, it might be a struggle to show that Seroquel caused diabetes in that particular patient.

The Prozac suicide cases are an even better example. Eli Lilly argues that many on Prozac are more likely to commit suicide with or without the Prozac so we should not be surprised that patients on Prozac might commit suicide in greater numbers than the patient population. With respect to specific causation, the reason the patient was put on Prozac in the first place is claimed – sometimes for good reason – as the real etiology of the suicide.

Many of the NuvaRing cases are not going to have difficulty specifying causation problems because women who are on birth control are generally – although obviously not always – relatively young. Plaintiffs’ lawyers handling NuvaRing cases are going to have an easier time proving specific causation if general causation is established.

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September 11, 2008

Favorite Non-Legal Blogs

I was tagged by the Drug and Medical Device Blog with an Internet meme (I don’t know what this is but I get the idea) asking Maryland Injury Lawyer Blog to (1) to identify five non-law blogs that we find to be interesting, and (2) to tag five lawyers to do the same thing.

I’m glad to be included by the Drug and Medical Device Blog. I’ve made fun of this blog on many occasions because of its “ultra partisan” view on drug and medical device injury litigation. How do I know that their views are uncompromisingly pro-pharmaceutical company? Because I read every single post they write. Anyone involved in products liability litigation would be foolish not to read this blog. It is the most well-written and informative blog discussing drug and medical device litigation by a landslide. It is also – to the extent such a blog can be – funny and entertaining, which makes this blog all the more maddening to me: anyone smart and funny should be obligated to see the world though the same lens that I do. This should be a rule.

These are the five non-legal blogs I like:

The Huffington Post – I do not like Michael Moore, even though we largely agree politically, because I think he is knee jerk closed minded in his view. I think the Huffington Post falls in this trap far too often, as well. Yet I find myself sneaking over to read it every day since Governor Palin was nominated. I’m like the guy looking at "The Kramer" painting on Seinfeld: “It hideous, yet I can't turn away!"

Deadspin – An outside-the-box sports blog that presents the sports news of the day with colorful and funny commentary

The Daily Dish – I have mixed feeling on Andrew Sullivan’s views of the world but I just really enjoy his writing. (Same goes for George Will, even though I can’t understand half of what he writes.)

The Severna Park Health & Fitness Blog – I have a horse in this race but Club One Fitness' blog is good on health and fitness and local Severna Park news (where I live).

The Anonymous Lawyer Blog – You might argue that this is a legal blog, but it’s fiction, so I’m going to include it. The blog premise is that the hiring partner of a large law firm blogs about his day at the office. The author, a recent law school graduate, has lost interest in the character so there are no new posts but if you have never read it, you can jump in the archives. If you have ever done defense work at a large firm, you will almost certainly find it funny.

The Five Blogs I Tag:

The Illinois Trial Practice Blog – Evan Schaeffer keeps this discovery and trial tactics blog on message but hopefully he will indulge us by playing along.

The South Carolina Trial Law Blog – Dave Swanner’s blog on running a law practice and maximizing the value of personal injury cases

Overlawyered – I disagree with Walter Olsen on a lot of issues but this is a quality blog that makes many good points and points out abuses to the legal system that we all need to be concerned about.

The Baltimore Injury Lawyer Blog – A new Miller & Zois blog written by John Bratt that I think is already one of the best trial practice blogs out there. Check it out for yourself.

Maryland Injury Lawyers Blog – This is Goldberg, Finnegan & Mester’s blog on Maryland personal injury law. Sure, they basically stole our unique, outside-of-the-box blog name by adding an “s” but they are our friends and they are really good accident and malpractice lawyers.

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September 5, 2008

Personal Injury Links for the Week

These are some personal injury related links from around the country this week:

The Burlington Times News has an article about North Carolina’s decision to require North Carolina doctors to report all medical malpractice payments greater than $25,000.00. These results will be released to the public. The article notes that only 4% of the doctors in North Carolina in the last seven years have made malpractice payments.

Legal Newsline.com has an article on how medical malpractice damage caps in Texas have decreased malpractice premiums. As I have written before, in spite of what a lot of medical malpractice lawyers have argued, this cause-and-effect relationship is textbook economics. I think it is also true that the quality of patient care in Texas is falling dramatically because there are no repercussions when a doctor seriously harms a patient.

The Baltimore Injury Lawyer Blog has a post on John Bratt’s recent auto accident trial in Montgomery County.

Pharalot reports that the FDA will now be compile quarterly a list of drugs that have been identified as having potential safety concerns. Can anyone argue this is a bad idea?

The new Maryland Accident Lawyer Blog has a post on the Maryland Court of Special Appeals’ recent ruling in a wrongful death car accident case that took the lives of a man and his three children.

The Illinois Trial Practice Weblog has a post about the top 10 rules of evidence every lawyer must know. (Top 10 lists are irresistible.) The same blog also has a good post on videotaping your opponent’s deposition.

Does Sarah Palin support the idea of jury nullification?

The Baltimore Sun reports that the FDA may not be properly screening drugs for the potentiality of the medications inducing suicide. Plaintiffs’ product liability lawyers who have been looking at these issues for the last 20 years are Captain Renault-like stunned to learn that the FDA (and the drug companies) has not properly focused on the risk of drugs – particularly antidepressants – and suicidal thoughts and ideations.

Finally, the Torts Prof Blog continues to put together a comprehensive list of personal injury links from around the country.


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September 3, 2008

Plaintiffs' Lawyer Are Committing Fraud and Defense Lawyers are Powerless to Stop It

The Mass Torts Blog, another defense lawyer blog brought to you from our friends at Dechert, posts on Labor Day about medical screening in mass tort cases. The allegations are basically that plaintiffs' product liability lawyers are committing fraud when screening clients. Read the post for yourself and tell me that is not a fair summary of what the post alleges.

It would be nice to have a more moderated voice coming from Dechert, a fantastic international law firm, as opposed to the the defense lawyer version of Ann Coulter. But if what the Mass Tort Blog is saying is correct - that a large number of plaintiffs who accepted settlements in the asbestos, silica, fen-phen, silicone breast implant, and welding fume litigations were fradulent, manufactured claims - where were the defense lawyers to protect the defendants from this fraud?

Obviously, it was easy to make this determination, as Cardozo Law School Professor Lester Brickman had done in his study, which was relied upon in the Mass Torts Blog post. Were defense medical examinations a condition of settlement? Did they just blindly trust the plaintiffs' lawyers? If this really is the case, shouldn't we infer that all of the defense lawyers who defended these cases committed legal malpractice?

Before a posse of drug and medical device companies form to file a lawsuit against all of these defense lawyers for legal malpractice (including, ironically, Dechert) for failure to properly defend their clients, let me save them: this contention is nonsense. The reality is that the defense lawyers sized up these cases, reviewed medical records, and made the appropriate decisions as to who should be included or excluded. The notion - that defense lawyers allow systems to exist where they just have to trust, without safeguard, the plaintiffs' lawyers and the doctors they hire to evaluate cases - lacks any foundation, notwithstanding Professor Brickman's 177 page polemic.

By the way, I wonder what Professor Brinkman’s null hypothesis was coming into this article. Does his CV give it away at all? Jury consultant David Ball suggests not presenting a case with the language of an advocate in an opening statement until you have earned the confidence of jury. On page 14 of his 177 page paper, Professor Brinkman says, “Thus, screenings coined money as surely as if the lawyers had access to the government printing press.”

I don’t think Professor Brinkman has read David Ball.

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August 28, 2008

Publication of My Book on Maximizing the Value of Personal Injury Cases

Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.

I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."

August 25, 2008

Should Companies Be Required to Disclosure Expected Litigation Obligations in Product Cases?

The Wall Street Journal has an editorial with an anti products liability lawyer spin. No surprise. But what is surprising is that I actually agree with it.

In light of Enron and other business collapses that left stockholders holding the bag without any real picture of the financial condition of the company, the Financial Accounting Standards Board wants to tighten standards. One requirement would make companies account for the potential cost of ongoing litigation not just with respect to attorneys’ fees but with respect to the actual value of the claims. The Wall Street Journal editorial says product liability lawyers will be able to use the information to extort settlements and influence jury verdicts.

I’m not worried about either of those outcomes no matter how many times the editorial uses the phrase "extort settlements." But I do think there is a risk of forcing a defendant to publicly estimate settlement and verdict values because I think it does tip off product liability lawyers and creates a floor for the value of any mass tort claim. I also think the editorial is correct that predicting the trajectory of long and complex litigation is inherently unscientific. Mass tort cases are like the stock market in that their values are always changing. A good trial outcome or even a good expert deposition in an MDL can increase or decrease the value of a case. Moreover, I’ve been involved with mass torts from both sides and believe knowledge of the true value of the case is rarely known even to the insiders until the advanced stages of the settlement process.

I appreciate the concerns of investors wanting to know the exposure imposed by lawsuits. I just think the downside of stacking the deck against the companies in a product defect case by requiring them to show their hands to products lawyers is not worth the tradeoff.

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August 19, 2008

FDA Preemption: More on Medtronic and Wyeth

The Wall Street Journal publishes an editorial bashing the effort in Congress to overturn the Supreme Court’s ruling in Riegel v. Medtronic. Nothing new in the editorial, just a repeat of the policy arguments Medtronic successfully advanced in Riegel.

I found the last line of the editorial of interest:

If Congress really wants to improve the quality of medical products for consumers, it would better spend its energy on reforming the bureaucratic morass that is the FDA.

No acknowledgement was made of the incredible irony of the author’s advocating an organization he calls a “bureaucratic morass” to be the last and only safety net for protection and justice for people who have suffered catastrophic life altering injuries.

In related news, Pharmalot notes that 47 state attorneys generals, former FDA commissioners, members of Congress, constitutional experts and editors of The New England Journal of Medicine have filed their own briefs arguing against preemption in Wyeth v. Levine. I'm not going to read and break these briefs down. But I'm also guess our friends at the Drug and Medical Device Blog are not going to either. But, in an upcoming post, they will break down the DRI amicus brief for the 11th time, this time including an analysis of the suit and tie color schemes worn by the 72 lawyers who wrote the brief (shocking sneak preview: they love it!).

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August 14, 2008

Wyeth v. Levine

The Wall Street Journal has a good article online about the preemption battle that is being waged the FDA's bureaucrats in the courts and in Congress. The last line of the article says that "Some drug companies are telling plaintiffs' lawyers that if they settle their cases now, they won't pay as much to the plaintiffs as they would have six months ago, before the Supreme Court announced that it would hear the Wyeth case. A lawyer negotiating a settlement with one drug maker said company executives told him it wants the 'Wyeth discount.'"

I don't think many cases are going to be settled for a "Wyeth discount" because both sides seem to think they are going to win. I cannot imagine how the court could find that there is conflict between state and federal law in drug cases because I think it is clear that federal labeling requirements create a floor for state tort claims, not a ceiling. Wyeth cannot hide behind the FDA in a warnings claim because it can give any warning that it likes. But then again, I predicted we would win Riegel v. Medtronic and we suffered an 8-1 drubbing at the hands of the Supreme Court. So I'm probably the wrong person to turn to with predictions.

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July 30, 2008

Zimmer Durom Cup Recall: Post Market Surveillance Needs Facelift

A New York Times article yesterday on the Zimmer Durom Cup's problems underscores the post-market surveillance problem with drugs and medical devices, pointing to the Zimmer Durom Cup problems that have led to Zimmer recalling their hip replacement component. This is a Zimmer fault; they should have a system of tracking and honestly responding to reports of problems with their hip replacement components. But we clearly cannot expect drug and medical device companies to police themselves. In this case, the Zimmer Durom Cup recall was precipitated by Larry Dorr, an orthopedic surgeon who is the medical director of the Dorr Institute for Arthritis Research and Education in California, essentially outing Zimmer by courageously (he was well paid by Zimmer as a consultant) speaking up in public about the problems and Zimmer’s blind eye to them.

Safety and speed are the yin and yang of the regulation of drugs and medical devices. Americans want both; we want safe medical devices that have been tested, but we also want instant access to breakthrough products. But the reality is that not all new drugs and devices should be treated equally. We needed to rush new AIDS drugs onto the market without much testing 10 years ago because the risk-benefit analysis demanded it. But do we need a new anti-smoking drug like Chantix, or a new defibrillator lead that is a little thinner than the last generation (Medtronic), with such great speed? Sure, the marketing department of the drug and device companies would prefer it that way, but is that the best thing for the consumer or even the pharmaceutical company in the long run?

Adding to the problem is the Prescription Drug User Fee Act in 1992, which was a deal between the FDA and the drug industry. Drug and medical device companies agreed to pay millions of dollars in fees, and the FDA promised that drug and medical device reviews would be completed within a year for those products on the fast track.

But as I pointed out last year, all of this new FDA money was for clinical trials and other pre-market efforts. No investment was made into the post-market surveillance once the product was actually being used by consumers. While the FDA still looked at drugs and medical devices after they were put on the market, this wing of the FDA became the odd man out with respect to funding, which means it lost the best people and resources.

The Prescription Drug User Fee Act in 1992 was well intended. But we need to focus more energies and money on trying to find new funding and give more attention to these products after they are on the market. As the Times article points out, many believe that a starting point is a national database — employed by such countries as Australia, Britain, Norway and Sweden – to register these problems and require the companies to explain the reports.

For a real life example, Zimmer still sells in the United States a knee implant, known as the Unispacer, even though Australian doctors stopped using it three years ago after registry data showed it had quickly failed in more than half the 40 patients who received it there.

While a national registry and more accountability would not be a panacea, it would be a great starting place. We have 1 million hip replacements in this country each year. From an economic standpoint alone - for those of your who are not moved by human suffering - wouldn't it make sense if we monitor how well the replacements are working?

It is still early but we believe there many be a great number of claims Our lawyers are investigating Zimmer Durom Cup recall claims throughout the United States. If you believe or suspect you have received a Zimmer Durom cup component and are having problems (or are a referring lawyer), our Zimmer Durom Cup recall lawyers will review your claim. Call a Zimmer Durom Cup lawyer at 800-553-8082 or click here for a free Zimmer Duron Cup lawsuit free consultation.

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July 29, 2008

Efficacy of Chantix

While making clear to potential referring lawyers that our law firm is handling Chantix cases, I always gave Pfizer credit that Chantix did help users quit smoking, even if it did appear to cause a host of health problems to a minority of users. Now GlaxoSmithKline begs to differ.

In a study Glaxo recently commissioned, Chantix is found to be no better at helping patients quit smoking than therapeutic nicotine such as NicoDerm. Of course, Glaxo makes NicoDerm, so it has motivation to find as it did, but the results are interesting. These results were published yesterday in the August issue of Thorax.

Our lawyers continue to accept cases involving Chantix claims from those who have suffered adverse effects from Chantix. To inquire about a potential Chantix lawsuit, you can call a Chantix lawyer at 800-553-8082 or click here for an Internet consultation. For more information on Chantix lawsuits generally, click on the preceeding Chantix lawsuits link.

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June 30, 2008

Riegel v. Medtronic: Congress to the Rescue?

Since the Supreme Court’s disaster in Riegel v. Medtronic, I have been hoping and expecting Congress would step in to fix the Supreme Court’s ruling, because it was clear from the amicus briefs submitted in Riegel, from history and from common sense, that Congress did not intend to preclude medical device tort claims. Yesterday, California Congressmen Henry Waxman and New Jersey Congressman Frank Pallone, along with 62 bipartisan supporters, introduced HR 6381, the Medical Device Safety Act. This bill would effectively undo the wrong the Riegel does to medical device victims. The Senate is expected to offer a similar bill next month.

As the Wolf said in Pulp Fiction, we can’t start congratulating ourselves yet (I’m paraphrasing). This bill has not even made it out of a committee yet. But at least something is happening.

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May 29, 2008

Is Chantix the Next Class Action?

The Baltimore Sun reported last week that the FAA has banned pilots and air traffic controllers from using the quit-smoking drug Chantix following a study that found it had apparently contributed to auto accidents and other mishaps that posed risks to both users and others.

Chantix began as a success story, billed as a relatively risk free drug that helps you quit smoking in a far more civilized way than just quitting cold turkey. The “easier to quit smoking” part of the hype was as advertised: 44% of people taking Chantix were able to quit smoking in comparison to 17.7% percent of those taking placebos. Chantix is believed to block nicotine from stimulating the certain brain receptors, so nicotine would not give users the dopamine boost they receive when they smoke. Chantix also stimulates the release of low but consistent levels of dopamine to help decrease nicotine urge.

Correctly expecting the drug would be a real money maker ($883 million in 2007 alone), Pfizer had requested and received an accelerated review by the FDA and Chantix was approved in May of 2006. But it takes a while to see if serious side effect will emerge. Pfizer knows this as well as anyone from its experiences with Zoloft, a drug that was on the market for many years before reports of suicidal behavior (and lawyers filing lawsuits) forced Pfizer to put a warning on the drug.

Why doesn’t Pfizer just play it safe and put a suicide warning on the drug? As a lawyer who spent a number of years representing pharmaceutical companies, I certainly have a theory: warnings on the product label would have discouraged general practitioners from prescribing Chantix, which would have hurts sales. But in hindsight, not including a warning is going to cost Pfizer more in defending lawsuits and settling Chantix cases.

Our Chantix lawyers are investigating lawsuits on behalf of victims and their families who suffered a serious injury or death by suicide from the use of Chantix throughout the United States. If you or a loved one have experienced a severe side effect from Chantix, a Chantix lawyer at 1-800-553-6000 or click here for a free Internet consultation.

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May 16, 2008

Digitek Recall Lawsuits

Digitek is manufactured by Icelandic generic drug-maker Actavis Totowa; it is distributed by Mylan Pharmaceuticals under the label "Bertek and by UDL Laboratories under the label "UDL." Digitek is medication for patients with mild to moderate heart failure, and control of ventricular response rate in patients with chronic atrial fibrillation. Digitek strengthens the contraction of the heart muscle, slows the heart rate and helps eliminate fluid from body tissues.

Digitek was recalled last month because it is linked to digitalis toxicity, which can cause nausea, vomiting, dizziness, low blood pressure, cardiac instability, bradycardia and death.

What happened? Apparently, tablets with double the appropriate thickness may have been commercially released. In other words, a patient taking 0.25 mg of Digitek might have received a pill labeled as 0.25 mg., but the pill itself was actually 0.5 mg. These tablets may have contained twice the approved level of active ingredient. It is not known yet exactly what happened, but the most obviously guess is that this is a manufacturing error. (Before you ask, the drug was made in the United States – not China.)

Our lawyers do not pretend to know exactly why Digitek tablets reflected half the dosage patients were actually receiving. But there are not many scenarios one can fathom where this apparent manufacturing error with Digitek was not the result of negligence of Actavis.

Accordingly, our Digitek recall lawyers are reviewing these Digitek overdose cases throughout the country with the expectation that a class action lawsuit will be appropriate. If you want to discuss your case with one of our Digitek lawyers call us at 800-553-8082 for a free consultation or click here for a free Internet consultation.

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May 15, 2008

Dennis Quaid Testifies Before Congress on Heparin and Preemption

Dennis Quaid testified yesterday before the House Committee on Oversight and Government Reform considering the reversal of the Riegel v. Medtronic Supreme Court decision finding that state tort claims regarding medical devices were preempted if the FDA granted pre-market approval for the medical device. Dennis Quaid told Congress on Wednesday that taking away the right to sue pharmaceutical companies would turn consumers into "uninformed and uncompensated lab rats." Quaid emotionally described the near fatal drug mix-up in which his newborn twins were given 1,000 times the appropriate dose of Baxter’s blood thinner heparin in November at Cedars-Sinai Medical Center in Los Angeles.

Quaid has a lawsuit pending against Baxter for his twins’ heparin overdose. Medtronic v. Riegel does not bar his lawsuit but the Supreme Court will consider this Fall whether to extend the preemption umbrella to pharmaceutical drugs in Wyeth v. Levine. Congress has the ability to shut down all of this preemption talk by passing a bill negating Medtronic and Wyeth.

Apparently, Tom Davis from Virginia, the ranking Republican on the committee – fresh off his lovefest with Roger Clemens (any regrets on that one, Congressman?) – fell apart again, frozen by the presence of a star. He told Quaid that if this happened to his family, "I'd be suing everybody in sight." Interesting admission. What does this tell us? I’m just curious, Congressman, do you think you should get access to the justice you would seek but deny others because you are rich, famous, powerful, or all of the above?

Reminiscent of my blog post earlier this week, Quaid also said he has changed his tune on tort reform after the near tragedy. "Like many Americans, I believed that a big problem in our country was frivolous lawsuits," Quaid testified. "But now I know that the courts are often the only path to justice." I think Quaid is confusing “frivolous lawsuits” with tort reform which are two incredibly different topics. But, whatever, I am glad he is with us now.

I also have twins that had health concerns when they were born, so I certainly sympathize with what Quaid and his family went through. But while I love his movies, particularly the sports movies like Any Given Sunday, The Rookie, and Everyone’s All-American (although it ran a little long), I’m not sure Quaid is exactly the right person to be the anti-preemption spokesman testifying before Congress. I believe people who are famous and/or powerful have every right to speak up and use their power and influence to further their causes. But when Congress puts its seal of approval on the notion fame alone entitles you to a seat at a table to which you would otherwise be uninvited, it makes me a little queasy, even if the witness is someone that I’m in complete agreement with on the issue.

Others did testify, including Georgetown University law professor David Vladeck who told the House Reform and Government Oversight Committee what I have been saying repeatedly on this blog: the FDA does not have the ability – regardless of resources – to make drug companies accountable on their own. Committee chairman, Henry Waxman underscored my other theme: if these companies have no liability, all the financial incentives will push them down the wrong path and an already problematic situation from a pubic health standpoint will multiply exponentially.

Again, as long as President Bush is in office, all of this is just preliminary but it is good to get the ball rolling toward putting the preemption defense back in the hole in which it belongs.

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May 12, 2008

Congress Looks at Riegel v. Medtronic

On Wednesday, the House Committee on Oversight and Government Reform begins hearings on the reversal of the Riegel v. Medtronic holding that state tort claims regarding medical devices were preempted if the FDA granted pre-market approval for a medical device. Pharmaceutical drug manufacturers have been on a real hot streak of late before this conservative Supreme Court. They are looking to extend their streak by asking the Supreme Court to extend the preemption umbrella to pharmaceutical drugs in Wyeth v. Levine, which is expected to be heard this fall. Congress has the opportunity to cut this pro-business Supreme Court off at the knees although I doubt they could get a bill past President Bush. Things may change in 2009.

The star studded cast of witnesses includes Dennis Quaid (whom I imagine will speak to the heparin overdose of his twins), William Maisel, (Medical Device Safety Institute), Aaron Kesselheim (Harvard Medical School's Division of Pharmacoepidemiology), David Kessler (former FDA head), David Vladeck, (Georgetown law professor who has written on preemption) Gregory Curfman (New England Journal of Medicine editor); Christine Ruther (drug company consultant) and State Representative David Clark (Republican state legislator from Utah who I suspect is in favor of preemption).

Again, I don’t suspect that this committee is going to try to send a bill to the floor anytime soon but it is good to get the ball rolling on righting the wrong of Riegel v. Medtronic.


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April 9, 2008

Heparin Recall Death Toll Rises

The FDA yesterday raised from 19 to 62 its estimate of the number of people who may have died as the result of the Baxter heparin recall.

Regrettably, this number is going to continue to rise well past 62 fatalities. Our law office alone has received calls in scores of heparin related death cases. Because people taking heparin often have quite complicated health problems, not all of these deaths will be the result of the use of heparin. But a substantial percentage of these deaths are the result of the contaminated heparin Baxter received from China.

Our Baxter heparin recall lawyers are accepting both individual and class action defective heparin recall cases throughout the country. If you want to discuss your heparin case with one of our Baxter heparin recall lawyers, call us for a free consultation at 800-553-8082 or click here for a free Internet consultation.

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April 4, 2008

Let's Give the FDA More Work

A House committee this week approved legislation that would give the FDA new authority over the tobacco industry, giving the FDA the ability to regulate the sale and marketing of tobacco products such as flavored cigarettes and "light and low tar" products. A floor vote on the House of Representatives is expected soon.

Okay, the FDA is unable to inspect Chinese factories leading to the deaths of scores of people in the Baxter heparin recall debacle because it is under funded and stretched too thin. So our Supreme Court responds by making them the ultimate gatekeeper and the "great decider" as to whether drug companies are negligent (as opposed to the cute, yet silly, citizens of our country), and Congress responds by giving them even more work – regulating the behemoth this is big tobacco.

Now, incredibly, to complete the governmental insanity trifecta, we need President Bush to join in the fun. Who knew he would be the holdout? My guess is that he will find a way to oblige. He’s good like that. Maybe next week he will declare his plan that if the FDA approves a doctor – a one page Internet application by the doctor should do it - then no medical malpractice action can be brought against the doctor.

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March 28, 2008

Does Singulair Cause Suicide?

The FDA said yesterday it is looking into a possible association between Merck's allergy and asthma drug Singulair and suicide. The FDA has received reports of mood changes, suicidal ideation and suicide in patients who have taken Singulair. Trying to get out on the front of the curve with its package insert, Merck has previously updated Singular’s drug labeling four times to include potential risks of tremors, anxiousness, depression and suicidal behavior that has been reported in some users of Singulair.

To call Singulair a popular drug is an understatement. Singulair is Merck's biggest selling drug and one of the world's top selling medicines with $4.3 billion in sales. Singulair is also a leukotriene receptor antagonist. These types of drugs have previously been linked to suicidal ideation and suicide. Two similar drugs, AstraZeneca's Accolate and Critical Therapeutics's Zyflo, will also be reviewed by the FDA. Neither of these drugs have suicide warnings.

Singulair/suicide litigation just might be the next big mass tort. But I doubt it. Unfortunately, 40,000 people a year commit suicide and when you have a drug like Singulair that is used by millions, some of those people are going to take Singulair and commit suicide. Some will even take Singulair and commit suicide in close temporal relationship with the initiation of the drug which really leads people to assume that it must be the drug. But it does not automatically follow that Singulair causes suicide. That remains to be seen and my guess is that Singulair does not cause suicidal behavior. Either way, it is nice to see the FDA is trying to get out in front a potential risk (for once). This is probably a byproduct of the errors that the FDA made with Chantix, where the FDA rushed Chantix - a drug that alters mood - onto the market without fully assessing the suicide risk. .

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March 21, 2008

Gadolinium MRI Lawsuits

When I started practicing law, I spent most of my time defending a pharmaceutical company in AIDS/hemophilia cases, litigation involving approximately 10,000 completely innocent people who contracted HIV from the use of Factor VIII and Factor IX blood products. Regardless of how you viewed the liability of the involved drug companies, everyone agreed on the magnitude of the tragedy (which was very underreported in the media). My experience in those cases eventually lead me to becoming a plaintiffs’ lawyer because I quickly realized I would be far more energized by representing innocent victims who needed my help than large pharmaceutical companies. After I became a plaintiffs’ lawyer, I thought I would never be involved in a mass tort lawsuit with facts as tragic as the AIDS/hemophilia cases, but the gadolinium MRI contrast litigation, while on a thankfully smaller scale in terms of number of patients, is in the same league of suffering - a cruel, progressive disease that you contracted through absolutely no fault of your own.

Gadolinium is the contrast given before a MRI (or MRA, magnetic resonance angiograph, although this practice was never FDA approved) to increase the contrast of blood vessels during an MRI procedure so that the reviewing radiologist can better diagnose abnormalities. While gadolinium did improve MRI diagnostics, nephrogenic systemic fibrosis or nephrogenic fibrosing dermopathy (NSF/NFD) resulted for many patients with kidney issues who received a gadolinium contrast MRI. NSF/NFD causes thickening or tightening of the skin and connective tissues, which severely limits a patient’s ability to move, and it also causes pain, muscle weakness, scarring of internal organs and difficulty bending joints. It seems that patients’ lives are potentially at risk because of the damage to their organs, and destroyed by their inability to move. What we can all hope for is that science will move quickly forward to find ways to make this NSF/NDF more manageable.

More than 215 cases of NSF/NFD have been documented in the last decade, but despite ongoing research, the etiology of the disease was originally unknown. Now, it is clear that use of gadolinium contrasting agents in patients with kidney failure is the culprit. In June 2006, the FDA first said that NSF/NFD can be caused by the use of gadolinium contrast MRI. Last year, on May 23, 2007, the FDA asked manufacturers to include a new boxed warning with gadolinium contrast informing health care providers that patients with severe kidney insufficiency who receive gadolinium contrast are at risk for developing NSF/NFD. Additionally, the warning states that patients with liver problems are also at risk for developing NSF/NFD if they are experiencing kidney problems.

The lawsuits against the five manufacturers of Gadolinium have a simple premise: these companies knew that gadolinium is toxic and, if misused, could lead to serious injury. Accordingly, these companies should have properly designed and tested the gadolinium MRI contrast and given more consideration to vulnerabilities of the different types of patients who would be using the contrast, in this case, patients with kidney disease or renal dysfunction.

I met recently with a confirmed NSF/NFD client here in Maryland. These cases are just absolutely heartbreaking. This client I met with is a wonderful woman who was struck down in the prime of her life by NSF/NFD. Thankfully, she is in better spirits than most people you meet.

The gadolinium MRI cases around the country have been consolidated in MDL-1909 in Ohio. Our gadolinium MRI NSF/NFD attorneys are investigating these cases throughout the country. If you or a loved one has been diagnosed with NSF/NFD, call one of our lawyers for a free consultation at 800-553-8082 or click here to discuss your gadolinium MRI case via the Internet.

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March 17, 2008

Heparin: The Payoffs and the Pitfalls of Manufacturing Drugs in China

The Boston Globe published an article on Friday about the concerns surrounding the manufacture of drugs and medical devices in China. Looking at the Baxter Heparin cases and seeking input from the perspective of a plaintiff’s lawyer, the Globe called me for an interview. This is an excerpt from the article:

“But there are also risks, as evidenced by the heparin incident, that could damage a company’s reputation and lead to expensive litigation. Ronald V. Miller, Jr., a Baltimore lawyer who is considering filing a lawsuit on behalf of patients injured by heparin, said it is easier to win damages against a company that sells defective products made in China instead of the United States.”

“Reasonable people understand that there is some level of concern about Chinese manufacturing,” said Miller, a partner in the law firm Miller & Zois, LLC. “Indeed,” he said, “jurors might conclude that companies make products in China to cut costs at the expense of safety.”

I think this is true. In fact, I think it would be difficult to argue with that statement. But that does not mean that any manufacturing defect case against a Chinese made drug is a slam dunk by any stretch. But if you are going to manufacture a drug or medical product, particularly a life saving drug like Baxter’s heparin, in China or anywhere outside of the United States, you are distancing yourself from the product. This is okay, as along as you take the proper precautions. Here’s a quick checklist companies might want to consider:

•Has the FDA inspected the manufacturing site? (heparin:no)

•Has the foreign version of the FDA inspected the manufacturing site? (heparin:no)

•Is there any final means to verify the product is safe after that stage through the manufacturing process? (heparin:no)

•Is the product one where, if there is a mistake in the manufacturing process, it is likely to have serious or fatal repercussions? (heparin: no)

Obviously, for Baxter with Heparin, it failed every element of this list and, as a result, its Heparin product was transformed from lifesaving to fatal for many consumers.

Concerns about the loss of jobs at home notwithstanding, drug companies may be serving their customers well by manufacturing their products abroad to cut costs because they pass along, in whole or part, these savings to their customers. But if that is the plan, they have to realize that the further they ship away the nuts and bolts of the manufacturing process the more they need to make sure there are adequate safeguards in place to keep the product safe.

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March 10, 2008

MDL Panel Choice of Venue/Choice of Law

Alexandra D. Lahav, a law professor and editor of the Mass Tort Litigation Blog, has an interesting blog post on choice of law made by the MDL Panel in cases consolidated for discovery where the applicable law chosen may foretell the outcome of the case.

To receive certification by the MDL Panel, under Rule 23 you must have: (1) plaintiffs so numerous that joinder is impossible (numerosity); (2) class claims which present common questions of law or fact (commonality); (3) plaintiffs' claims that are typical of those of the class (typicality); and (4) plaintiffs who are adequate representatives of the putative class (adequacy).

This blog post addresses the third prong, commonality of law. In some cases, like the Michigan law at issue in Warner-Lambert v. Kent, with different statutes of limitations, the issue can be a case breaker for the plaintiffs. In MDL cases now, the MDL Panel determines which law will be applied by selecting where to send the case - wherever the case is sent, that forum's law applies. As Ms. Lahav's post points out, the MDL Panel is placed in a terrible situation when the outcome of the case is based on transfer and is already known in advance of the transfer.

Ms. Lahav's blog post, which she says will be the subject of an upcoming law review article, says the MDL panel should consider "transferring and centralizing the cases to several regional forums. I suggest two forums. Plaintiffs who filed within the regions covered by the preemption precedent would be consolidated in one court; plaintiffs who filed in the regions covered by the non-preemption precedent would be consolidated in another court. This would not lead to duplicative discovery because all the cases in region 1 would be dismissed, and all the cases in region 2 would proceed."

I do not appreciate the nuances of the law involving the seven judge MDL Panel's decision making process or the possible ramifications of Ms. Lahav's remedy. While this decision might hurt some plaintiffs who might be able to backdoor otherwise barred claims, I have to admit is appears to be a reasonably fair solution in cases where the choice of law is dispositive of the claim.

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March 6, 2008

Heparin Recall Answers

The FDA performed MRI tests on Baxter's heparin blood thinner that has already caused at least 21 deaths. The MRI found that as much as 20 percent of the drug's active ingredient was made from an undetermined counterfeit material. Although our lawyers did not "rush to judgment," we strongly suspected that there was a manufacturing defect with heparin that originated in China. It now appears virtually certain that this is exactly what has led to these deaths and injuries from the use of Baxter's heparin.

Our Baxter heparin recall lawyers are reviewing both individual and class action defective heparin recall cases throughout the country. Our law firm is handling only serious injury and death cases in the heparin defect cases. If you or a loved one has suffered a serious injury or death from the use of heparin and want to discuss your potential heparin lawsuit with one of our lawyers, call us for a free consultation at 800-553-8082 or click here for a free Internet consultation.

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February 26, 2008

Do We Trust Juries?

According to a recent poll on jury duty, the answer is yes. Fifty-eight percent of those surveyed believe that a jury is fair and impartial all or most all of the time. Even more interestingly, half of those surveyed said they would expect a jury to give a fair verdict as opposed to a judge. Only 23% selected a judge over a jury (27% were unsure). In other words, by a margin of more than 2 to 1, we trust juries more than judges. Only 18% of African-Americans and 19% of Hispanics chose a judge.

Maybe our founding fathers were on to something with this whole “jury of our peers” thing. But I don’t think this is a knock on our judges. Instead, I think people would prefer to be judged by regular everyday people like themselves who are outside of the process.

In light of the recent Medtronic ruling and drug preemption cases pending before the Supreme Court, I would like to add one more question to the survey: Do you think a jury or the FDA is more likely to protect you and your family from a defectively designed pharmaceutical drug or medical device? Someone do this survey and send the results to the Supreme Court.

Thanks to the Florida Jury Selection Blog for the link to the study.

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February 20, 2008

Riegel v. Medtronic

The Supreme Court opinion in Riegel v. Medtronic was issued this morning. I'm just starting to read it now and will comment later today about the holding once I get a chance to actually read the case. Scalia wrote the opinion which scares me but seven justices join Scalia's opinion so I do not think the holding will be too radical. But I will get back to you later today...

Follow-up note: I just finished the case and will not give a full response today. Quick summary is that we lost. The good news is that Medtronic v. Lohr still appears to be good law and the Supreme Court's holding (I think) will be limited to medical devices that receive premarket approval from the FDA (but Scalia even appeared to hedge on that). The Court decided to ignore its own rule of statutory construction not to be "guided by a single sentence or number of sentences" but to instead look to the "provisions of the whole law, and to its object and policy." Instead, it turned to a few sentences to its liking and ignored what the Court knew was the intent of Congress. Classic Scalia.

I think everyone agrees that there is no suggestion in the legislative history of § 360k(a) that injury victims would lose their only vehicle for recovering compensation for injuries caused by negligent or inadequately labeled PMA devices. Say what you want about the value of legislative history but not a single member articulated the view that this statute would preempt state tort law claims. In fact, a House Report of the bill notes with apparent approval that California already had adopted a regulatory scheme for medical devices which completely contradicts the Court's holding. The legislative history of the MDA is so in conflict with the Court's holding that it might as well have made a new rule that legislative history is never of probative value.

More generally, the whole purpose of this statute was patient safety. In fact, as Scalia points out, it was the Dalkon Shield debacle that lead to the MDA in the first place. Okay, I'm rambling at this point. I'm not proofreading this. I'm just going to hit send. Then, I'm going to go home and play with my kids. When they are in bed, I'm going to send some money to Obama (gee, can you do that on-line?) and hope that he will help Congress sort out this mess in January.

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February 15, 2008

Baxter Heparin Recall

With the preemption arguments raging on in the Supreme Court and in circuit courts around the country, we have yet more evidence that making the FDA the gatekeeper for product liability claims is tantamount to naming Roger Clemens the new performance enhancing drug czar. The FDA is under fire for approving the sale heparin, Baxter’s blood-thinning drug, without bothering to inspect the plant in China that manufactured the heparin's active ingredient. Peter Barton Hutt, a former top FDA lawyer, said that since 1980 the FDA has had a policy requiring that plants be inspected before drugs are approved for sale. “It was obviously a glitch” that the FDA didn't bother to inspect the site, said the F.D.A. through a spokesperson.

On Monday, Baxter announced that it had temporarily halted production of its version of the anti-clotting drug heparin because of about 350 bad reactions linked to heparin, including four fatalities, primarily in patients undergoing kidney dialysis and heart surgery. The active ingredient used to produce heparin was sold by Baxter International until sales were suspended after the aforementioned fatalities and complications.

I love the FDA's response. "While no FDA inspection of the facility has been conducted to date, preparations are being made to perform an inspection as soon as possible. We have already requested expedited access to the facility, facilitated through a recently signed agreement with the Chinese State Food and Drug Administration. FDA also has requested the facility's inspectional data and adverse event reports connected to the product." Thanks guys. Now that the horse is out of the barn, we are so grateful for you to take the time to close the door. United States Supreme Court? Are you there? I hope you are paying attention.

Our Baxter heparin recall lawyers are reviewing both individual and class action defective heparin recall cases throughout the country. If you want to discuss your case with one of our Baxter heparin recall lawyers, call us for a free consultation at 800-553-8082 or click here for a free Internet consultation.

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January 10, 2008

Medtronic Recall: Comment on Wall Street Journal Editorial

An editorial in the Wall Street Journal last week discusses the Medtronic recall of its Sprint Fidelis defibrillator leads. On October 15, 2007, due to reports of at least five patient deaths associated with defects in its Sprint Fidelis defibrillator leads, Medtronic withdrew from the market all defibrillators with those leads. Leads are connected to a defibrillator that both transport information of an irregular heartbeat to the defibrillator and carry what are often lifesaving electric impulses to the heart. The Sprint Fidelis leads were withdrawn because many of the leads were either not performing at all or were administering unnecessary shocks to the heart.

This editorial, as you would expect in the Wall Street Journal, has a pro-medical device manufacturer slant. The article claims that cardiologists have been calling for smaller leads because they are easier to thread through the veins when implanting the defibrillator and because they are less likely to lead to blood clots or distort heart valves. The actual evidence as to this groundswell among cardiologists for thinner leads is less clear.

This editorial argues that in the post-Vioxx era, drug and medical device companies “are under pressure to get out in front of even modest risks in spite of the fact that all therapies carry some risk.” The editorial opines that these withdrawals “strip choices from patients and their doctors.”

But this editorial does not point to a single medical doctor in the country who has stated that he/she would still rather use the Sprint Fidelis leads instead of the Sprint Quattro leads that were working just fine before the Fidelis leads came along. In fact, the editorial does not refer to any recent time when doctors protested the withdrawal of any drug or medical device because risk/benefit analysis favored continued use of the drug.

The editorial also expresses concern that Republican Senator Chuck Grassley is pushing legislation to require full disclosure of the terms of drug and medical device companies’ financial relationships with doctors to resolve the problem of pharmaceutical companies buying the allegiance of the leading doctors and researchers.

Trust me, as someone who has gone around the country developing experts for both drug and medical device companies, this is a huge problem. With certain drugs and medical devices, it is impossible to find a doctor who is an opinion leader with no financial ties – directly or indirectly – to a pharmaceutical company. Most of these doctors are good, honest doctors trying to do the right thing by patients, but it is hard even for the straight shooters not to be influenced by financial ties with these companies. And if you do cross these companies, look out. They very well may come after the doctor’s career. (This post discusses just one example.)

On this issue, this Wall Street Journal editorial goes to the tried and true: blame the trial lawyers. It claims that publishing the names of doctors will “create a registry of the deepest pockets for trial lawyer browsing,” which will have a chilling impact on the participation of the best doctors needed to conduct the studies to get these drugs on the market.

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January 7, 2008

Seroquel Lawsuits: The Problem with Off-Label Use of Seroquel

Seroquel (generic quetiapine fumarate), is an antipsychotic medication manufactured by AstraZenica. The drug was approved in 1997 for treatment of schizophrenia, but additional off-label uses to treat anxiety, obsessive compulsive disorders, dementia and autism are where the big money is for AstraZenica. And big money it is. Seroquel had $3.4 billion in sales in 2006 alone. Seroquel has been approved in 88 countries for the treatment of schizophrenia, in 79 countries for the treatment of bipolar mania, and in 11 countries including the U.S. for bipolar depression. Last week AstraZenica sought approval for its more recent creation, Seroquel XR (quetiapine fumarate) both in the treatment of manic episodes and the treatment of depressive episodes associated with bipolar disorder.

It may well be that Seroquel is efficacious in treating these symptoms. But there are increasing reports about the increased risk of diabetes pancreatitis in patients taking Seroquel. The FDA has warned of diabetes risks from Seroquel and the labeling has changed in Seroquel. But Seroquel remains on the market today.

At a congressional hearing on drug safety, Dr. David Graham, an FDA drug safety expert, was asked about concerns he had on drugs currently available today. Dr. Graham testified that “I would pay careful attention to antipsychotic medications. Seroquel LawyerThe problem with these drugs are that we know that they are being used extensively off-label in nursing homes to sedate elderly patients with dementia and other types of disorders... But the fact is, is that it increases mortality perhaps by 100 percent. It doubles mortality. So I did a back-of-the-envelope calculation on this and you have probably got 15,000 elderly people in nursing homes dying each year from the off-label use of antipsychotic medications.... With every pill that gets dispensed in a nursing home, the drug company is laughing all the way to the bank." Fifteen thousand people is an incredible number of people to die. But there is no uproar and the drug remains on the market.

You might be asking how Seroquel has achieved sales of $3.4 billion dollars while the FDA has only approved atypicals for bipolar disorder and schizophrenia, diseases that affect just 1 percent of us. In fact, Seroquel is third on the hit parade – two other atypicals, Risperdal and Zyprexa sell a great deal more than Seroquel. The sales reps for the companies that sell Seroquel, Risperdal, and Zyprexa are pretty good at their jobs and they know how to push these drugs on doctors who they well know are not treating bipolar or schizophrenic patients.

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January 7, 2008

We Agreed to It But You Can’t Enforce It Because It Is Unethical: The Vioxx Settlement

Plaintiffs’ lawyers in the Vioxx litigation are running away from a key term in an agreement that was signed about twenty minutes ago – the requirement that plaintiffs’ lawyers advise either all or none of their clients to accept the deal.

Think about that for a second. The quality of Vioxx cases varies wildly because the most difficult part of making the case was proving specific causation for the individual plaintiffs. Lawyers with clients injured by Vioxx are required by the agreement to give the same advice to all of their clients.

A first year law student can figure out that this is unethical. How this group of plaintiffs’ lawyers, some of whom are amongst the most talented lawyers the plaintiffs’ bar has to offer, could have agreed to this in the first place is incredible.

It is easy to understand why Vioxx’s lawyers would like to have such a provision in the agreement. Eighty-five percent of the pending cases must settle under the current agreement for the settlement to be effective. But the value of the remaining 15% is still quite high because the very best cases – young people at low risk for heart disease would appear to be the best cases – can opt out of the settlement.

The agreement has another provision that I think is unethical because it bars lawyers with participating clients from representing the others who opt out of the deal and continue with their lawsuits. This is going to completely screw the people who suffered the most in these cases because it will deny those people access to Vioxx lawyers with experience to prepare and try a Vioxx case. By contact, lawyers are selling out their clients who will no longer have a lawyer to handle their case. Ironically and tragically, many of these people are the clients who have suffered the most and who are now going to struggle to find competent counsel.

Thankfully, there is time to sort out this whole mess. No, wait, there is virtually no time at all. The deadline to submit these claims is next week, January 15th. Plaintiffs who hope to qualify for shares of the settlement must submit the details of their case on or before this date. They must commit to the settlement by March 1. Merck is expected to start making payments in August. This is a complete mess. I hope the court lets the plaintiffs’ lawyers out of this mess but, if not, this is a debacle of their own doing.

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January 3, 2008

Riegel v. Medtronic: New England Journal of Medicine Editorial

There is an editorial in this month’s New England Journal of Medicine on Riegel v. Medtronic, the preemption case soon to be decided by the Supreme Court that has pharmaceutical and medical device companies sitting on the edge of their seats.

Quick background: A man was injured when a balloon catheter exploded during an angioplasty. The manufacturer, Medtronic, moved to dismiss the case on the grounds that the Food, Drug, and Cosmetic Act of 1976 immunizes Medtronic from any state law torts claims for medical devices because the device received pre-market approval from the FDA.

The authors of the New England Journal of Medicine editorial set forth the history and rationale of the Food, Drug and Cosmetic Device Act, pointing out that arguments in this case are just another version of the same arguments Medtronic offered in Medtronic v. Lohr, a case in which the Supreme Court rejected the preemption of state court claims arguments. The authors note that this case addresses “just how reliable the FDA pre-marketing approval process is and how much weight to give it.” The authors do not explicitly answer this question but it is hard to argue that the FDA is an effective watchdog of pharmaceutical and medical device companies. (For some of the reasoning as to why the FDA regulatory paradigm is flawed, read this blog post.)

The authors close the editorial with a list of questions that the Supreme Court should address to determine what is best for the country. “Is it in the people's interest to shield medical-device companies from product-liability claims? Would such a decision benefit patients by making more lifesaving medical devices available, or would there be adverse effects on the overall safety of devices? Is the FDA pre-marketing approval process sufficiently rigorous and comprehensive enough to justify immunization of the industry against tort claims? And if medical-device manufacturers are shielded from liability, what about drug manufacturers? Or would society be better served if patients retained their right to seek legal redress when they believe they have been damaged by a faulty medical device? In the long run, would this result in safer medical devices for patients?” The authors conclude if the Supreme Court wants to protect patients, it should reject Medtronic’s request for immunity.

The authors also note that if the Supreme Court comes to the “wrong conclusion” patients injured by defective medical devices have a remedy in Congress (who, by the way, have never to my knowledge questioned the Court’s holding in Medtronic v. Lohr). This is how it might play out because I think Congress would then clarify its position on preemption. But if this happens, it might jeopardize the claims of patients who currently have lawsuits pending against medical device companies, most notably and ironically, the thousands of Medtronic defibrillator lead recall class action lawsuits pending around the country.

By the way, the Drug and Device Law Blog has a ton of posts on Riegel v. Medtronic. If drug and medical device manufacturers were like political parties, the Drug and Device Law Blog would serve as the text of the party platform for drug and medical device manufacturers. The authors, Jim Beck and Mark Herrmann, two mega-firm pharmaceutical defense lawyers, rarely if ever deviate from the party line. But the blog is incredibly well written and provides quality and current analysis of the issues in medical device and pharmaceutical drug litigation. It is a shame that more quality defense lawyers do not blog because the truth is that most of the great writing talent among lawyers resides in huge defense firms.

You can access the New England Journal of Medicine article here although I’m not sure how long it will be available for free.


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December 4, 2007

Riegel v. Medtronic: The FDA Preemption Super Bowl

Today, the Supreme Court will hear argument in Riegel v. Medtronic Inc. The issue is whether the Food, Drug and Cosmetic Act forecloses state law personal injury lawsuits for injuries from the design, manufacture and labeling of a Medtronic medical device that was granted pre-market approval by the Food and Drug Administration. This case is a product defect case involving a Medtronic balloon catheter that killed the patient but, this case could have ramifications for the Medtronic lead recall lawsuits that are being filed all over the country. While technically this case focuses on a specific statutory provision, no one would be surprised if the Supreme Court’s holding provides a comprehensive framework for preemption that would apply to all drug and medical device cases.

Naturally, the Bush administration has lined up squarely behind the pharmaceutical companies. This is ironic because there is a strong presumption against preemption, particularly in cases where the issue involves the individual states’ power to protect public safety and health. The Supreme Court has consistently found that preemption of state law does not apply unless “the nature of the regulated subject matter permits no other conclusion” or “the Congress has unmistakably so ordained.” Chicago & N.W.Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317(1981) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963)).

Preemption limits the states’ ability to protect its own citizens. The requirement that express preemption provisions be unambiguous follows this administration’s line of thinking: the states should be allowed to decide what is best for its citizens whenever possible, accordingly we should err on the side of states’ rights unless the preemption provisions are crystal clear. Yet, in this case, this administration supports usurping the states’ power even when it is clear that there is no express legislative intent for preemption.

The Bush administration is a big proponent of states rights. The President clearly believes that if the state of Kentucky finds that all of its citizens should be permitted to walk into shopping malls with AK-47s, it is all good and the federal government should just stay out of it. Yet all of this high minded capital “F” Founding Fathers and Federalism gets trumped because pharmaceutical and medical device companies do not want to be held accountable for their own negligence. The lesson, as always, is that protecting big business prevails over all, even at the expense of deeply held core values.

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December 3, 2007

Medtronic Lead Recall: Possible Good News for Medtronic Defibrillator Patients with Defective Leads

The Medtronic recall and the concern being expressed about the St. Jude Riata leads has left patients in fear that they have defective defibrillator lead wires in their chest that cannot be removed. Both Medtronic and the FDA have suggested that for most patients, removing the leads is not the best option because of the risks associated with the removal.

The good news, according to a recent article in Medical Device Week, is that medical technology is moving towards a safe and effective way to remove leads if they become damaged or dangerous to the patient.

Leads can become hazardous for any number of reasons, whether it is a question of faulty manufacturing like the defective Medtronic leads, or because they become infected or blocked over time. In the 1980s, most implantable leads were removed by mechanical sheaths. However, they were eventually replaced by power sheaths which were in turn abandoned for the newer laser sheaths. Cook Medical in Bloomington, Indiana has taken a more traditional approach in creating Evolution, their new tool for defibrillator lead removal and throwback to the mechanical sheaths of the ‘80s.

According to Cook Medical, the new Evolution mechanical dilator sheath boasts improvements over the traditional mechanical sheaths and has none of the drawbacks which plague the power and laser sheaths of today. The design of the original mechanical sheaths caused them to be somewhat awkward and require a large degree of physicality to operate. The new Evolution design has eliminated this concern. They are not as bulky or as costly as the current electronic sheaths, and they are able to avoid the unintentional damage to surrounding tissue sometimes caused by their electronic counterparts. The mechanical Evolution does not require the additional capital equipment, annual maintenance and calibration, biomedical inspection, electricity source, or on-site laser officer necessitated by a laser sheath. Reportedly, the mechanical sheath also maximizes physician control.

Continue reading "Medtronic Lead Recall: Possible Good News for Medtronic Defibrillator Patients with Defective Leads" »

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November 21, 2007

St. Jude Defibrillator Leads: Is Another Recall on the Way?

When writing about the Medtronic lead recall last month, we wrote that the St. Jude Medical Riata defibrillator leads might also be suspect, noting that either St. Jude similar leads were technologically superior or that data had not caught up to the problem because St. Jude has less market share than Medtronic. Both the Medtronic Sprint lead and the St. Jude Riata lead are smaller than other defibrillator leads. Certainly, they are easier for cardiac surgeons who are threading the defibrillator leads through the patient’s blood vessels than the Quattro lead or other available leads. The question is whether these newer and thinner defibrillator leads are safe. The Medtronic lead recall and the reports we are getting from clients all over the country make clear that the Medtronic Sprint lead is defective.

Now, the question is whether the St. Jude Riata lead is similarly flawed. According to a Wall Street Journal article last week, reports are emerging that some St. Jude defibrillator wires may be defective. As opposed to staying attached to the heart where they belong, there are reports that the St. Jude leads are puncturing holes in the hearts of defibrillator patients. The punctures are not insignificant; some reportedly are nearly poking through the patients’ skin.

If the lead is not attached to the heart, it creates the same (failure to shock the heart) concerns we now have with the Medtronic Sprint leads. Even more problematic, the detached wires can cause the heart to bleed, creating a potentially life-threatening condition.

There is no question that in rare cases this can happen to any defibrillator lead. St. Jude claims that there is no evidence that Riata leads are more likely to perforate the heart than any other defibrillator leads.

But the medical community is not so sure. The medical journal Pace reported last week on four women with perforations from St. Jude Riata defibrillator leads. The patients (from Nebraska, New York, and the Czech Republic) all had their defibrillator leads removed. Cardiologist Dr. Stephen C. Vlay wrote that if the leads perforate, the problem is often not uncovered until the lead goes through the heart wall.

Continue reading "St. Jude Defibrillator Leads: Is Another Recall on the Way?" »

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November 19, 2007

Medtronic Class Action: What Does a Class Action Mean to Medtronic Defibrillator Lead Recall Victims?

Our lawyers receive calls every day asking about what a Medtronic class action lawsuit means to them. The Medtronic class action will be in the form of a multidistrict litigation (“MDL”). Pursuant to 1968 law, an MDL is a procedural mechanism that will pull all of the Medtronic lead recall cases in federal court together in a single action for consolidated pretrial handling. Under this law, a seven judge-panel appointed by the Chief Justice of the Supreme Court has the authority to consolidate the Medtronic cases and select a MDL judge to oversee the Medtronic class action.

In an MDL, there is not a single trial that resolves all of the cases. An MDL only pertains to pretrial discovery matters. After discovery has been conducted of the key witnesses and all of the relevant documents have been obtained, the Medtronic cases will be returned to the original court in which they were filed.

This actually makes sense both for Medtronic and for Medtronic defibrillator lead recall plaintiffs because it does not makes sense for anyone to have to depose the same witnesses over and over again if the same witnesses are people of interest in all of the Medtronic leadcases. For example, the person who made the decision to put the Medtronic leads on the market is going to be a relevant witness in every single case. In the Medtronic MDL, they will conduct what is called a trial deposition (or de bene esse deposition), in which the witness gives testimony by videotape which has the same effect as if the witness were to testify live a trial.

If you are a Medtronic plaintiff who would prefer to settle your case as opposed to going to trial, the MDL is a good vehicle to settlement. While an MDL is technically just for pretrial proceedings, functionally, if history is any guide, it will be the end point for the overwhelming majority of Medtronic cases. Big companies like Medtronic are driven by stock prices and financial reporting requirements. Investors typically want to limit a risk, which means resolving large cases through settlement. So an MDL class action creates an incentive to Medtronic to access the risk and what the value of the Medtronic lead recall cases really is which usually helps induce a reasonable settlement.

Continue reading "Medtronic Class Action: What Does a Class Action Mean to Medtronic Defibrillator Lead Recall Victims?" »

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November 12, 2007

Medtronic Class Action Lawsuit: Will Medtronic Follow the “Merck Model”

Merck is being lauded for its strategy of aggressively fighting virtually every injury claim. In spite of a $4.85 billion settlement that may only settle only 85% of open claims, Merck is getting pats on the back from Wall Street and kudos for its Churchillian cry to wage war. The question is will Medtronic follow suit in the defibrillator lead class action lawsuit?

If this is the course Medtronic takes, I suspect they will find themselves in the same category as many asbestos manufacturers who took the same path: financial ruin.

Why, then, was Merck arguably successful? Setting aside the insanity of calling a $4.85 billion settlement a success, Merck has been successful at trial because these cases are tough. Heart attacks and strokes with patients on Vioxx are what epidemiologists call confounding by indication, which means that people taking Vioxx, because of their typically more advanced age, are people also at risk for heart attacks independent of the Vioxx. Moreover, the injury itself is the leading cause of death in this country.

While there no question that Merck dropped the ball on patient safety with Vioxx, the question was always whether Vioxx caused the heart attack or stroke with the particular patient. This is the problem for Vioxx plaintiffs. Trust me, if a lawyer has a 25 year-old otherwise healthy client who took Vioxx, that lawyer is not going to be recommending that client join the class action settlement and that case is going to be worth a great deal of money. The problem was that most of the Vioxx plaintiffs were much older people at high risk for heart disease with or without Vioxx.

Causation is going to be much easier in the Medtronic cases for a host of reasons. First, everyone with these leads is injured, at least in the sense of fear that their Medtronic defibrillator will fail because the leads fail to detect an abnormal rhythm or because the leads shock the heart when they shouldn’t. If you have one of these Medtronic defective leads in your chest, you obviously know what I’m talking about. If you do not, think about it for a second. You made the choice to get a defibrillator which shows how concerned you were about abnormal heart rhythms. That is a serious choice to make. Now, for many patients, these wires are imbedded into their tissues with no meaningful way to recall them. How would you feel knowing you have a defibrillator that has wires that may fail to shock your heart when your heart falls out of rhythm or might shock your heart when you do not need a shock? Every juror hearing a Medtronic case is going to appreciate this harm.

Secondly, the liability is virtually established by Medtronic’s own statements about the failure of the leads. When all is said and done, the issue in these cases is going to be one of damages, not liability. In cases like these, Medtronic lawyers are going to have to have a lot more resolve to continue fighting than in the Vioxx cases where it appears that every individual case is an uphill battle.

Continue reading "Medtronic Class Action Lawsuit: Will Medtronic Follow the “Merck Model”" »

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November 5, 2007

Medtronics Lead Recall

We received today a letter from one of our clients that she received from Medtronics.

Our attorneys are representing patients with these Medtronic defibrillators with defective leads not only in Maryland but around the country. You can find more information about the Medtronics Lead Recall below:

Questions and Answers About Medtronics Lead Recall (frequently asked client questions)

More News and Information on the Medtronics Lead Recall (class action information)

Medtronics Defibrillator Lead Recall Lawyer Analysis (discussion of what happened)

Congress Responds to the Medtronics Recall (details of congressional inquiry of Medtronics leads)

Medtronic's Response to the Defibrillator Lead Problem (what did Medtronic know and when did it know it?)

Medtronics Letter to Patients with Recalled Lead (received from one of our lead recall clients)

Commentary on How FDA Failed Medtronics Defibrillator Patients (discussion of flawed system)

Information for Lawyers Seeking to Refer Medtronics Cases to Our Law Firm (information about our firm for attorneys referring Medtronics lead recall cases)

Will Medtronic Follow the "Vioxx Plan" in the Medtronic Defibrillator Lead Lawsuits?

Contact Us (call 800-553-8082 or contact us by email for class action information).

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November 4, 2007

Trasylol Lawyers

Bayer AG is talking its anti-bleeding drug Trasyol off the market following the release of a Canadian study that found it appears to be linked to higher risk of death than other drugs. The FDA asked Bayer to stop selling Trasylol pending further review of the Canadian study. The FDA approved Trasylol in 1993 and had previously recommended that Trasylol remain on the market despite studies linking it to various health problems.

The safety of Trasylol has been debated since a study published in January 2006 linked the Trasylol to kidney damage, heart attacks and strokes. One of those studies previously was withheld by Bayer from the FDA due which Bayer attributed to a "regrettable human error."

Trasylol is used to stop bleeding during heart bypass surgery by blocking enzymes that dissolve blood clots. The drug, which appears to be efficacious it is purpose, is designed to stop or slow blood loss, enabling patients receiving heart bypass surgery to avoid transfusions. Unfortunately, the risk of kidney damage, heart attacks and strokes appears to outweigh the salutary benefits Trasylol may have.

For the plaintiffs’ Trasylol lawyer representing the victims, the difficulty is going to be determining whether a heart bypass patient received Trasylol. Most bypass patients do not know the specific drugs given to them during surgery. So it most cases, your Trasylol lawyer will need to request the necessary medical records to determine if Trasylol was used.

If you have had a heart attack or a stroke after heart bypass surgery or if you have any questions, call our Trasylol lawyers at 1-800-553-8082 or click here for a free Internet consultation.

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October 29, 2007

Medtronic Defibrillator Lead Recall

In a blog post a few weeks ago on the Medtronic recall, I noted that I thought Medtronics was doing the right thing, acting conclusively without equivocation once the decision to recall the leads was made. Apparently, the FDA agrees. Medtronic has been praised by the FDA for ordering the recall in the “absence of conclusive data.”

I agree with part of the premise, but I disagree that there is an “absence of conclusive data.” Medtronic has confirmed 665 chronic fractures in returned leads already. Exactly how many people have to die or have their lives put at risk before the FDA believes that there is conclusive data? Does anyone wonder why Congress feels compelled to investigate what the FDA has done in its oversight role in the Medtronic recall?

While Medtronic may have acted decisively, which is commendable, there is increasing evidence that it should have acted sooner to get in front of the problem. According to Dr. Sidney Wolfe, director of the health research group at Public Citizen, Medtronics waited too long to act. "Why did the FDA, aware of the rapidly mounting number of injury reports, not force the company to recall defibrillators not yet implanted in the early part of this year?" wrote Dr. Wolfe in a letter to the FDA, pointing to data that shows that 1,194 associated injuries had been reported - up from 296 injuries reported in the first 10 months of 2006, a 400% increase. Congress is also concerned. Iowa Senator Charles Grassley wrote in a letter to the FDA that it appears "Medtronic was aware of the potential lead fractures several months before suspending sales of the Sprint Fidelis defibrillation leads. I am concerned that action may not have been taken in a timely fashion in this case as well.” Dr. William Maisel, who specializes in medical devices for the heart in Boston, told the New York Times that Medtronic's warning to doctors in March, which told doctors of some early fracture reports, is another example of medical device companies’ failure to get out in front of the problem. "What is frustrating here is that this was another situation that was predictable,” Dr. Maisel told the paper. The Minneapolis Heart Institute apparently also knew where this was headed even before Medtronic's initial warning and discontinued using defibrillators with these leads back in February.

While the speed at which Medtronic acted is certainly an issue that will be addressed by Medtronics lead recall lawyers, the core problem is not the speed at which these companies act to recall. Instead, the root problem is that medical device manufacturers, like Medtronic, rush these products to market because of the huge profit margins defibrillators provide to those who can gain market share. In the last fifteen years, companies selling cardic medical devices have been on the rise. The stock price of one of Medtronic competitors, Canadian-based St. Jude Medical Inc., rose 232 percent between November 2002 and January 2006. Like we saw the housing boom, these kind of great rewards lead people to take risks they should not take.

The same thing happened just a few years ago. In June 2005, Guidant, which has since been bought by Boston Scientific, also recalled its defibrillators. It certainly appears the Guidant defibrillators were rushed onto the market, as well. Reportedly, the clinical trial data on these leads was not reviewed by the FDA. I really have a hard time believing this is true. If it turns out to be true, and there is a lot of investigation to be done both by Congress and by Medtronic defibrillator lead recall lawyers, it underscores once again that the fox is guarding the medical device hen house.

The competitive advantage these defibrillators had is that the Medtronic Sprint Fidelis lead was the smallest and thinnest wire Medtronic offered, which was alluring to doctors implanting defibrillators, because a thin lead is easier to thread through blood vessels. So Medtronics had a powerful hook to sell this new advance. But while the technology was superior, there was no longitudinal history of safety or efficacy. It is not surprising that Medtronics has now turned to an older lead, the Quattro lead, which has a more complete safety profile.

Our Medtronic defibrillator lead recall lawyers are reviewing defective lead cases throughout the country. If you want to discuss your case with a Medtronics defibrillator lead recall lawyer, call for a free consultation at 800-553-8082 or click here for a free Internet consultation. You can also click here for a question and answer of the issues in the defibrillator lead recall class action.

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October 19, 2007

Medtronics Lead Recall Lawyers File Class Action Lawsuit

Plaintiffs in the Medtronic defibrillator litigation are seeking class action certification against Medtronic for their defective implantable defibrillators. Five deaths have already been attributed to broken wires in the leads of these Medtronic defibrillators. Regrettably, more are expected given that 235,000 Americans have the four Sprint Fidelis lead wires that even Medtronic concedes are failing. Medtronic estimates that four to five thousand patients with the Sprint Fidelis lead will experience a lead fracture within 30 months of implantation. (You cannot help but assume this is low.) Medtronic is asking the 235,000 people with these defective electrical leads to have their physician evaluate whether their lead has developed a fracture. Certainly, you should contact your doctor if you do not know whether you have a Medtronic defibrillator - many people do not know the brand of their defibrillator, much less details as to the component parts (although most patients have a wallet card that will specify the manufacturer of their defibrillator leads). The Sprint Fidelis leads that have been recalled have the model numbers 6949, 6948, 6931 and 6930.

Obviously, lead recalls are particularly serious given the difficulty to replace them. Should a defective Medtronic defibrillator be replaced if there is no evidence of a fracture? This is an issue that can and should be addressed with your doctor.

While Medtronic has not disclosed the precise mechanism of how these Sprint Fidelis lead fracture failures have failed, it appears that the defect is caused by the small diameter of the coil and conductors in the lead. Because of this, the lead is subject to stress damage both during and after the defibrillator is implanted. A lead fracture occurs when the conductor is critically overstressed. While only five deaths have been reported, many people are reporting repeated electrical shocks due to their lead having fractured.

Medtronic appears to be trying to do the right thing after the damage has been done. Medtronic deserves credit for this. But the problem with Medtronic and these other medical device companies selling defibrillators is that because defibrillators are so lucrative, in an effort to sell more product than the competition, companies rush out new defibrillators, supposedly technologically superior to older defibrillators, but with no proven history of safety and reliability.

Our lawyers are representing patients with these Medtronic defibrillators with defective leads not only in Maryland but around the country. Fill out this brief form if you need additional information or would like us to review you case, or call us at 800-553-8082.

You can also click here for a question and answer of the issues in the defibrillator lead recall class action.

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September 27, 2007

Preemption in Duty to Warn Cases Against Pharmaceutical Companies

For years, pharmaceutical drug manufacturers have argued that the FDA approval of a drug preempts a duty to warn claim. If this argument had succeeded, FDA preemption would bar claims for injuries caused by a manufacturers' failure to warn about risks associated with their FDA-approved prescription drugs. President Bush’s administration has long supported this view in spite of the fact that his FDA has often been accused of not minding the store with respect to the risks associated with the drugs it approves.

Today, President Bush decided not spend to political capital on this issue, signing the Prescription Drug User Fee Reauthorization Act (PDUFA), H.R. 3580. This new law creates new federal safety requirements for pharmaceutical companies. This bill makes crystal clear that regardless of FDA approval, the duty to warn remains with the pharmaceutical companies to adequately provide a meaningful warning about the risks associated with the use of their product. Of course, the manufacturer's duty to warn the ultimate consumer of prescription drugs is limited, as it probably generally should be, to advising the prescribing doctor of the drug's potential dangers in the absence of contrary FDA regulations. The FDA maintains the authority to require label changes but the burden to warn rests with the pharmaceutical company. In other words, pharmaceutical companies can no longer hide behind the FDA’s skirt and argue that FDA approval absolves them of the duty to warn. Drug companies certainly can still argue to the jury that FDA approval is indicia of the fact that no duty existed.

This is the first time Congress has made any comment on the issue of labeling of pharmaceutical drugs. I have moderate political views and I try very hard not to make the Maryland Personal Injury Lawyer Blog about politics. But there is no denying that this bill never gets passed if the Democrats do not take control of both houses of Congress.

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July 31, 2007

Avandia Remains on the Market

As expected, an FDA advisory committee today ignored the urging of many leading researchers and consumer advocate groups and even one of its most influential scientists and voted 20-2 to keep the diabetes drug Avandia on the market. The FDA is not required to follow this recommendation but, almost invariably, it does.

Yesterday, Dr. David Graham, a leading FDA scientist and one of the FDA officials widely respected by both pharmaceutical companies and patients' rights advocates, said Avandia should be removed because of the risks and because Avandia was no better at controlling blood-sugar levels than similar diabetes medications such as Takeda's Actos (which might also increase the risk of heart disease according to a just published study).

Should Avandia be taken off the market? I don't know. Certainly, if a patient with serious life threatening diabetes is having a great result with Avandia, maybe the risk does outweigh the benefits for that particular patient. Perhaps the FDA should restrict Avandia for use in selected patients and brand Avandia with prominent and meaningful warnings referencing the studies that point to a greatly increased risk of a heart attack. But this is a different question than the real question Avandia lawyers are looking at with clients who have suffered a heart attack or stroke while on Avandia: what are the risks of Avandia are when did GlaxoSmithKline learn of these risks?

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June 11, 2007

Avandia Backlash

GlaxoSmithKline's stock price has fallen approximately 10% since a study published in the New England Journal of Medicine in May showed an increased risk of heart attack and other adverse cardiac events for patients taking the diabetes drug Avandia. Now shareholders are fighting back. A class action lawsuit has been filed against GlaxoSmithKline in the US claiming the company issued a series of "false and misleading statements" regarding Avandia, the group's blockbuster diabetes drug.

Avandia is still on the market, pending further research. The FDA has said it will issue a "black box" warning on Avandia,which means that studies indicate the drug carries a significant risk of serious or even life-threatening adverse effects. This warning and the media frenzy around Avandia is going to decrease sales and, of course, declining profits. This lawsuit alleges that Glaxo not only ignored its duty to Avandia users, it also ignored Glaxo shareholders.

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June 4, 2007

Avandia Critic Says GlaxoSmithKline Intimidated Him to Remain Silent About Avandia's Safety Concerns

Next week, a congressional subcommittee will investigate the FDA's watchdog role in evaluating the risks associated with the diabetes drug Avandia. One witness, scheduled to appear at the hearing, claims that Avandia’s maker, GlaxoSmithKline, attempted to silence his criticism of the drug. John B. Buse, a nationally recognized diabetes specialist, says that Glaxo engaged in tactics to intimidate the doctor to keep him from going public with his concerns.

The New York Times reports that the Senate Finance Committee investigators have been looking into “very serious” claims that Avandia’s manufacturer “silenced one or more medical professionals who attempted to speak out about the potential risk of heart attacks and other serious health consequences as the result of the use of Avandia.

The news on Avandia continues to get worse and worse for Glaxo...


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May 23, 2007

Avanida Attorneys

There is an interesting footnote to the expected lawsuits regarding Avandia that our Avandia attorneys wrote about a few days ago. The authors of the New England Journal of Medicine article, who discovered the cardiovascular risks associated with the diabetes drug Avandia, found the material for their study on the Avandia manufacturer GlaxoSmithKline's website.

As part of a Paxil-related settlement with the state of New York a few years ago, Glaxo Smith Kline agreed to post the results of all clinical trials to its website, including the clinical trials for Avandia. Medical experts are expected to pressure legislators to require drug makers to fully disclose the result of all clinical trials.

A cardiologist at the Cleveland Clinic, Dr. Steven Nissen, who was one of the first doctors to point out the cardic problems caused by Vioxx, came across the Glaxo website while researching Avandia last year. He and a colleague quickly analyzed the data, and The New England Journal of Medicine released its finding that Avandia posed a heightened cardiac risk. Apparently, Glaxo fought to avoid publishing the data for Avandia and its other pharmaceutical drugs.

The New York Times article reporting on this story would seem to suggest this agreement came back to bite Glaxo. But I suspect the real truth is that less people will suffer serious or fatal injuries as a result of it. This is good for public safety and, in the end, good for Glaxo's bottom line.

If you have had a significant cardiac event such as a heart attack or stroke, please call our Avandia attorneys at 800-553-8082 or click here for a free Internet consultation.

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May 20, 2007

Avandia Lawyers: Attorneys Handling Avandia Cases Throughout the Country

Our lawyers are investigating Avandia, a diabetes drug which may significantly increase the risk of a heart attack. A study to be published in the “New England Journal of Medicine” found that Avandia may increase cardiac risk. The journal’s editor, Dr. Jeffrey M. Drazen, is quoted as saying that, “We view this as the best publicly available data on a very important question. It shows what we regard as a preliminary, but worrisome, signal about cardiovascular toxicity of this drug.”

This journal article does not necessarily mean that there is a products liability case against Glaxco, but the facts are emerging in a manner eerily similar to the Vioxx debacle. In fact, the finding that Avandia raises the risk of heart attack by 43 percent and aincrease the risk of heart-related death by 64 percent was based on a review conducted by Dr. Steven E. Nissen of the Cleveland Clinic, who was among the first doctors to raise questions about the cardiovascular risks associated with Vioxx.

The FDA has advised patients taking the drug, manufactured by GlaxoSmithKline, to seek advice from their doctor. The FDA intends to convene an advisory panel to investigate.

There is some question, however, whether the FDA is best suited to investigate. The New York Times reports that the FDA may have been aware of dangers associated with Avandia seven years ago. In a letter to the FDA on March 15, 2000, Dr. John B. Buse, chief of endocrinology at the University of North Carolina in Chapel Hill, who is about to become the president of the American Diabetes Association, expressed grave concerns about Avandia, citing “a worrisome trend in cardiovascular deaths and severe adverse events” among patients using the Avandia. Dr. Buse's letter was also critical of the Glaxo's marketing of Avandia, accusing the company of “pervasive and systemic” efforts to understate the Avandia’s risks and overstate its benefits.

Avandia, which has been on the market for seven years, is a big money maker for GlaxoSmithKline. Avandia is used by nearly a million people in the United States and two million people per year worldwide, for the treatment of Type 2 (adult-onset) diabetes. With $3.2 billion in worldwide sales last year, it was Glaxo’s second-biggest pharmaceutical product.

If you have had a significant cardiac event such as a heart attack or stroke, please call our Avandia attorneys at 800-553-8082 or click here for a free Internet consultation.

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May 12, 2007

Kugel Hernia Patch Lawyers: The Kugel Mesh Hernia Patch Recall

The Kugel mesh hernia patch is used to repair ventral hernias. There are over 750,000 hernia operations each year in the U.S. The Kugel hernia mesh patch is manufactured by C.R. Bard, Inc., and their subsidiary, Davol, Inc. who owns the patent on the device. The Kugel mesh patch is made of two pieces of mesh that surround a flexible plastic ring. The surgeon places the mesh patch in a small incision. The surgeon would fold the patch and place it at the site of the hernia. The released ring would then spring back into its original shape, flattening the patch. The meshlike material would serve as a substrate, allowing the hernia patient's own tissue to grow and assist in healing the hernia.

The Kugel Mesh Patch can break, however, leading to bowel perforations and chronic intestinal fistulae. These are very serious conditions that pose a significant health risk to Kugel hernia patch patients. The problem with the Kugel hernia patch is that the plastic component could break and cut through a patient's internal organs and tissue. The FDA has received reports of more than 80 injuries and other problems possibly related to it, including several fatalities. Our Kugel hernia patch lawyers expect an increasing number of reports of injuries in the weeks and months to come.

In late 2005, C.R. Bard sent out a recall on the Kugel patch, urging doctors to stop using some versions of the product, because a plastic component could break and cut through a patient's internal organs and tissue. Our Kugel patch lawyers believe that, at least by this time, C.R. Bard knew, or should have known, that other lots and versions were also implicated, both because of the evidence available to them, and because all of the Kugel patches had the same or similar memory recoil ring, which was causing the defect in the Kugel patches. Accordingly, our Kugel mesh hernia patch lawyers expect that more, if not all, of the patches will eventually be recalled.

Since December, there have been three separate recalls of different models of the Kugel patch. The FDA says surgeons and hospitals should immediately stop using the recalled patches and return the unused patches to the company. Patients who have been implanted with one of the recalled Kugel devices should consult their doctor or surgeon. You should seek immediate medical attention if you are experiencing persistent and/or unexplained abdominal pain, fever, tenderness or any painful lumps or bulges at the site of the Kugel implant/surgery, or any other unusual symptoms.

Our lawyers are currently reviewing Kugel mesh hernia patch cases throughout the United States and Canada. If you have one of these implanted devices, you may be entitled to compensation. Call our Kugel mesh hernia patch lawyers at 1-800-553-8082 click here for a free web consultation.

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March 30, 2007

Zelorn Is Withdraw at Request of FDA

Zelnorm, a drug designed to combat irritable bowel syndrome, has been withdrawn from the market at the request of the FDA.

The FDA reviewed 29 Zelnorm studies that demonstrated a greater risk for heart attack and stroke in patients treated with Zelnorm compared with a control groups given a placebo.

The studies found 13 cases of heart attack, stroke, or angina (chest pain related to heart disease) of the 11,600 patients who took the Zelnorm. The control group of 7,000 had only one similar non-fatal adverse event.

This development does not come as a shock to pharmaceutical lawyers or consumer advocate groups. In March 2001, Public Citizen urged the FDA to reject Zelnorm because was not efficacious in treating patients with irritable bowel syndrome and because of serious safety concerns. Zelnorm was also rejected as too risky last year for a second time by a European Union health advisory panel. Yet the FDA approved the drug in 2002.

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January 3, 2007

Paxil and Birth Defects

The FDA last month began advising health care providers and patients about the results of new studies for Paxil (paroxetine) suggesting that the drug increases the risk for birth defects, particularly heart defects, when women take it during the first three months of pregnancy. Paxil is approved for the treatment of depression, anxiety and several other psychiatric disorders. FDA is currently gathering additional data and waiting for the final results of the recent studies in order to better understand the higher risk for birth defects that has been seen with Paxil.

The FDA is advising health care professionals to discuss the potential risk of birth defects with patients taking Paxil who plan to become pregnant or are in their first three months of pregnancy. Health care professionals should consider discontinuing Paxil (and switching to another antidepressant if indicated) for these patients. In some patients, the benefits of continuing Paxil may be greater than the potential risk to the fetus. The FDA is advising health care professionals not to prescribe Paxil to women who are in the first trimester of pregnancy or are planning to become pregnant, unless other treatment options are not appropriate.

The FDA is advising patients, among other things:

(1) Paxil should usually not be taken during pregnancy, but for some women who have already been taking Paxil, the benefits of continuing may be greater than the potential risk to the fetus;

(2) Women taking Paxil who are pregnant or plan to become pregnant should talk to their physicians about the potential risks of taking the drug during pregnancy;

(3) Women taking Paxil should not stop taking it without first talking with their physician.

The FDA reports that early results of two studies showed that women who took Paxil during the first three months of pregnancy were about 1.5 times as likely to have a baby with a heart defect as women who received other antidepressants or women in the general population. Most of the heart defects reported in these studies were atrial and ventricular septal defects (holes in the walls of the chambers of the heart). In general, these types of defects range in severity from those that are minor and may resolve without treatment to those that cause serious symptoms and may need to be repaired surgically.

Everything I have written above comes from the FDA. I have previously represented GlaxcoSmithKline in litigation involving Paxil and the question of whether Paxil can induce homicide/suicide in some patients. I have no inside knowledge about the question of whether Paxil causes birth defects. But if you are reading this looking for an attorney to handle your case, I will not take cases involving Paxil.

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December 24, 2006

Zyprexa Side Effects

The New York Times reports that according to several internal documents, Eli Lily has been covering up its schizophrenia drug Zyprexa's link to obesity and its tendency to raise blood sugar. About 30 percent of people taking the schizophrenia drug gained 30 pounds or more within the first year. In addition, Zyprexa is more likely to cause diabetes than any other drug of its kind.

Stating the obvious, schizophrenia is an awful condition but many people live happy and productive lives by sticking to their pharmaceutical regimen.

Naturally, I do not think many personal injury lawyers are going to flock to take these cases because the plaintiffs are not ideal and the injuries allegedly caused would be difficult to prove with respect to causation. In situations like this where personal injury lawyers will not step in to investigate Eli Lily's alleged wrongdoing, the FDA needs to stand up and take its role as watchdog seriously. History has shown us they have not done so effectively.

Merry Christmas to all!

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November 18, 2006

Merck Verdict

A federal jury in New Orleans found that Merck's Vioxx was not responsible for a heart attack suffered by a Utah man. Merck had won two previous federal cases and lost the third. In state court it has won three and lost three. Jurors decided a fourth in Merck's favor, but the judge later ordered a retrial.

Plaintiff's lawyers had thought this trial was one of the better Vioxx cases. But, as often happens, the trial uncovered some interesting new evidence on cross-examination by Merck's lawyer: the Plaintiff realized he had not taken Vioxx for several days before his heart attack on July 25, 2003.

Rather than focusing on other reasons that likely caused Mason to have a heart attack -- his age, his sex, a relative who had a heart attack -- Merck's lawyer Phil Beck, an extremely good lawyer, focused his closing argument on the four days without Vioxx. "Vioxx cannot cause a heart attack if it is not in the system," he said. "Vioxx is out of the system in a few days. Once it's out of the system, it cannot have any effect."

As I have said all along, plaintiffs are going to lose most of these cases on specific causation. General causation is hard to dispute - the evidence is overwhelming that this was a bad drug and Merck covered up the risks associated with Vioxx. But the trick for plaintiff is to show that the harm was actually caused in an individual case.

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October 2, 2006

IOM Report on FDA

On Texas lawyer Bob Kraft's blog, he writes a blog on a common theme (click, for example, here and here) discussed on the Maryland Personal Injury Lawyer Blog: that the FDA should do more and the mere fact that the FDA approved a drug should be of little significance in a product liability case involving a pharmaceutical drug. As to the former point, Bob points to a New York Times article last week that discusses an Institute of Medicine (IOM) recommendation on what changes need to be made at and with the FDA. The IOM report suggestions included:

Newly approved drugs should display a black triangle on their labels for two-years to warn that as a new drug, their safety profile has not been established;

Drug advertisements should be limited during this two year period;

The FDA should thoroughly review the safety of drugs at least once every five years;

The FDA should have the power to issue fines, injunctions and withdrawals when drug makers fail — as they often do — to complete required safety studies;

Drug makers should be required to post publicly the results of nearly all human drug trials.

The IOM carries real weight in government and heath care circles. Let's see what happens with these recommendations.

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September 6, 2006

Maryland Lawyers Focus on Fosamax

A number of personal injury lawyers in Maryland are focusing on Fosamax® (Alendronate Sodium), a drug manufactured by Merck that is commonly used to treat patients with osteoporosis and Paget's disease. The drug is prescribed to strengthen the bones and prevent fractures in patients who have osteoporosis or who are otherwise at risk for bone fractures and other bone related conditions. For many, Fosamax has been a great drug. Paradoxically, these drugs can cause just the opposite effect. Accordingly, Fosamax and other bisphosphonates such as Aredia®, Zometa®, Actonel® and Boniva®, have drawn great interest from personal injury lawyers in Maryland and around the country. These drugs have been linked to Osteonecrosis of the Jaw (also called “ONJ,” “Dead Jaw” or “Jaw Death”). ONJ involves the breakdown or death of the jawbone, frequently leading to serious infection or fractures. Because Fosamax is the largest seller it has drawn the most interest from lawyers.

Unfortunately, many patients who take Fosamax, or a similar drug, have done so for years because the medication needs to be taken regularly to be continually efficacious. Many “Fosamax lawyers” think Fosamax is the next great mass tort wave in Maryland, and accordingly, many Baltimore attorneys are gearing up to recruit Fosamax victims. Our lawyers have been looking at Fosamax cases in recent months. I am not sure that Fosamax will be the next great mass tort, but for the selected number of people who appear to have suffered substantial injuries, these cases will be significant. My guess is that Fosamax will one day be an MDL class action. However, it is hard for Fosamax lawyers to gauge the full extent of the side effects of Fosamax because Fosamax’s half life is approximately 10 years. In other words, Fosamax users will still have half of the Fosamax that they have taken in their body 10 years after they have stopped taking the drug. Putting this in some context, the half life of Zoloft® is 26 hours. That makes Fosamax’s half life approximately 3500 times that of Zoloft. The practical effect of this is that Fosamax lawyers cannot predict the scope of the Fosamax problem because, with such a long half life, it remains to be seen how much damage Fosamax will cause.

What is interesting is that if you Google “Fosamax”, in the paid for advertising, you first get Merck’s Fosamax advertisement encouraging people to use Fosamax. The second listed add is a Maryland personal injury lawyer’s advertisement for Fosamax. Merck’s only mention in their advertisement of the side effect that has started this firestorm is on its list of “Selected Cautionary Information about FOSAMAX and FOSAMAX PLUS.” On this list is an advisory to Fosamax users: if “you develop severe bone, joint, and/or muscle pain at any time, contact your doctor.” It seems as though Fosamax users are contacting their doctor … and a lawyer.

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September 5, 2006

Texas Vioxx Verdict Questioned

Merck lawyers are seeking bank and cell phone records that may shed more light on a juror's financial relationship with a Texas plaintiff who was awarded $32 million against Merck for death of a 71-year-old man who took Vioxx. One juror apparently borrowed $10,000 interest free from the decedent's widow (the plaintiff in the Vioxx case). The juror said the loans included $2,500 that was paid off just weeks before he was selected as a juror in the case. The juror also produced cell phone records that showed calls by him to the plaintiff.

Last month, I wrote a couple of blog posts (click here and here) deriding the defendant doctor's medical malpractice lawyers for going after jurors financial disclosures and prior claims history after an adverse verdict. But this is completely different. A loan and telephone calls to the plaintiff just after he was selected for jury duty, these are the classic juror misconduct issues. Even a mere acquittance with the plaintiff is something that should be revealed during the voir dire practice. Regrettably, if these allegations hold up, I will agree with the trial judge if he choses to void the judgment against Merck and declare a mistrial.

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September 4, 2006

Mercury Dental Fillings

The risk associated with silver dental fillings made with mercury that plug cavities in the teeth of millions of Americans will be evaluated by the Food and Drug Administration again this week in light of persistent reports of health risks associated with mercury in general and specifically with silver dental fillings. The FDA will ask an outside panel of experts if it believes there is cause for further concern. I have complained in the past about the objectivity of these advisory boards when it comes to pharmaceutical drugs. With this issue related to mercury, however, I suspect they have found an unbiased group of experts.

At certain levels, mercury is toxic to the brain and kidneys. The conventional wisdom has been that the mercury vapors emitted from fillings are too low to cause injury. But conventional wisdom in medicine changes over time and the issues related to mercury are gaining attention from Maryland personal injury lawyers who are increasingly hearing reports from prospective clients complaining of injury as the result of the use of mercury.

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August 16, 2006

Reports of New Herceptin Risks

The Journal of Clinical Oncology reported that radiation and the pharmaceutical drug, Herceptin, are linked to some heart problems. Because radiation treatment in breast cancer patients cannot be localized to just the targeted area, the heart and coronary arteries are typically also exposed, increasing the risk of future heart disease. Herceptin apparently can lead its users to lose some pumping ability in the heart and shortness of breath, both very troubling outcomes for cancer patients and cancer survivors.

As I mentioned in my blog post on August 2nd, the cost/benefit of these cancer fighting drugs are very different from, for example, Vioxx. Clearly the fact that there are great risks associated with the use of Herceptin is well understood. The package insert warns, among other adverse events, pulmonary risks and cardiomyopathy (serious inflammation of the heart muscles). But the efficacy of Herceptin might be such that it is worth the risk given the benefits of the drug, even in conjunction with the heart risks that come with radiation. I point this out simply because many plaintiffs' pharmaceutical lawyers in Maryland and around the country have a knee jerk reaction that new learned of risks associated with a drug means there must be liability on the part of the drug company. But really, news of unexpected adverse outcomes is just the beginning for the personal injury lawyer's investigation as to whether there is liability on the part of the drug company for clients who suffered these adverse effects.

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August 2, 2006

Gleevec: Miracle Cure or Dangerous Drug?

In the August issue of the Journal of Nature Medicine, researchers report that Gleevec (known generically as Imatinib), a drug that treats leukemia patients, may cause serious heart damage. There is evidence of heart failure in 10 patients who took Gleevec.

I read this article both as a two-time cancer survivor and as a personal injury lawyer. To evaluate a drug, you have to evaluate both the risks and the benefits. Studies show 80 percent to 90 percent of chronic myelogenous leukemia (C.M.L) patients on Gleevec were cancer-free for at least five years. Patients die in usually half of the 4,600 new C.M.L. cases diagnosed each year. Accordingly, Novartis, the maker of Gleevec, has a good argument that the drug is not just efficacious but a miracle drug, particularly when you add in the fact that Gleevec can be given by mouth instead of by injection. In fact, even the researchers who reported these adverse events said that patients should not stop taking the drug, but must be watched closely for heart damage.

Does this mean Novartis did everything that it should have done? I don't know. Certainly, the preference would be that Novartis would have its finger on the pulse of its drug's side effects as opposed to Nature Medicine breaking this story. You would hope that Novartis has not been more forthcoming because this is a $1.2 billion drug and it fears losing market share. I have no evidence one way or the other. But just because a drug has potentially fatal consequence does not mean that drug should not be on the market. Patients and doctors have to weight the costs and the benefit.

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July 24, 2006

New FDA Advisory Committee Rules

The New York Times reported yesterday that the FDA will announce this week an effort to write guidelines detailing the kind of industry ties that are permitted for those who serve on its powerful advisory boards. The new rules, which are being debated internally and will have to go through a public comment period, are an effort to codify how the agency grants “waivers,” which allow experts with financial ties to drug makers to serve on the boards. The agency has almost complete discretion in granting waivers in a process that is mysterious to outsiders and confusing even to insiders.

If you have ever attended or reviewed a transcript of one of these FDA advisory board meetings, you can see they set forth all conflicts at the beginning of the meeting. It is incredible, typically every advisory board member has multiple conflicts on the drug they are asked to evaluate and consider for safety. This was permitted by informal waivers that could be granted for reasons that were never made clear to the general public. Accordingly, the FDA had absolute discretion in granting waivers. There is no question that the FDA must do a better job of keeping its advisory boards free from the pharmaceutical industry’s financial influence.

The rumors circulating on these new rules sound like they will be a great improvement. Reportedly, the FDA would make it virtually impossible for experts who get money from drug makers’ marketing departments to serve on FDA advisory boards.

The rules would also loosen other restrictions. Experts with ties to pharmaceutical companies through their academic institution may no longer need a waiver.

This is a difficult issue. Certainly, if a drug manufacturer is pouring a lot of money into your university, it may increase the expert’s power and authority within the university, leading to financial and other intangible gain. But there are very few academic experts engaged in research who do not have significant ties to the pharmaceutical industry. So it is a difficult balancing test. I’m not sure that these rules will solve the problem, but it is good to know the FDA is at least acknowledging the problem and looking for creative solutions.

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July 13, 2006

Vioxx Verdict in New Jersey

Merck scored a much needed victory on Thursday when Atlantic City, New Jersey jurors decided that the drugmaker's Vioxx painkiller did not cause a 68-year-old woman's heart attack.

Vioxx was once a $2.5 billion-a-year blockbuster for Merck, who now faces more than 13,000 Vioxx-related lawsuits. Merck now has a 3-4 record after seven trials. An eighth trial is under way in Los Angeles.

My take on this litigation: Merck was painfully close to not only civil but criminal negligence in putting and keeping this drug on the market. But it does not make individual cases a slam dunk by any stretch because the vast majority of cases have significant causation problems. Reading between the lines of the facts in this New Jersey case, the jury found that the plaintiff, 68 years old, would have suffered the same heart attack even if she had not taken Vioxx.

Interestingly, the jury found that while Merck failed to warn the plaintiff about the heart risks of taking Vioxx, it did adequately warn her doctor of such risks. In Maryland and in most states, under the learned intermediary doctrine, the manufacturers of pharmaceutical drugs and medical devices are discharged of any duty of care to patients by providing warnings to the prescribing doctors.

This rule strikes many people as antiquated in 2006 because pharmaceutical companies are now ferociously marketing to the end users, as evidenced by turning on the television or opening up a magazine. New Jersey became the first court to accept this argument in Perez v. Wyeth Laboratories, Inc., 734 A.2d 1245 (N.J. 1999), ruling that advertising prescription drugs directly to end users “alters the calculus of the learned intermediary doctrine” such that the rule does not apply.

Apparently to provide some sense of balance, the court further ruled that if the pharmaceutical company complied with FDA advertising, labeling, and warning requirements (see my blog post on this issue), the rebuttable presumption will be that there was no failure to warn. A rebuttable presumption is a hard thing to overcome but the New Jersey jury in this Vioxx case apparently felt that the Plaintiff’s lawyers overcame this rebuttable presumption.

The Maryland Court of Appeals has adopted the learned intermediary doctrine. But in a case that sounds similar to Perez, the court in Rite Aid v. Levy-Gray, 391 Md. 608 (2006) declined earlier this year to extend the doctrine to those cases in which a pharmacy is disseminating information concerning the properties and efficacy of a prescription drug. Specifically, the Maryland Court of Appeals found that the learned intermediary doctrine does not preclude a pharmacy from being held liable when it provides a package insert that could provide the basis for such a warranty as a matter of law. In other words, a pharmacy may not use the learned intermediary doctrine as a shield. The logic of this case leads me to believe that the Maryland Court of Appeals rule similarly to the court in Perez.

Going back to the Vioxx litigation, because I think the plaintiff's pharmaceutical lawyers have smartly pushed the best cases first, it pains me to say that I predict that Merck's winning percentage will continue to increase over time. This is not because Merck was not negligent, but because of the difficultly in linking their negligence to heart disease, a common problem among individuals who were taking Vioxx because it is typically older people who needed Vioxx to combat arthritis. Because heart disease is so prevalent in older people, juries are going to struggle to determine whether the cause