Good luck bringing a class action in New Jersey federal court invoking the “off-label marketing” bugaboo. Last year, we had Schering-Plough Corp. v. Intron/Temodar Consumer Class Action, a putative class action we’ve previously covered. In that case, the court dismissed a third-party payor (TPP) class action for failure to state a claim where
The light rebuffs the moths
When a mass tort happens anywhere in the world, enterprising plaintiffs’ lawyers will try to figure out some angle that will enable them to file suit in the U.S. against somebody, anybody, who is tangentially connected to the tort. We all know why: American courts and especially American juries are known for their generosity. Lord Denning, reportedly the most celebrated English judge of the 20th century, colorfully put it best: “As a moth is drawn to the light, so is a litigant drawn to the United States. If he can only get his case into their courts, he stands to win a fortune.” Smith Kline & French Laboratories, Ltd. v. Block [1983] 2 All E.R. 74 (C.A. 1982) (Denning, M.R.).
So it is natural that someone tried to bring cases here concerning the melamine contamination of infant formula and milk products in China, which reportedly affected thousands of infants in China. Their angle was an American holding company with Chinese subsidiaries that made contaminated milk products. Plaintiffs’ counsel found about 100 Chinese citizens and residents and filed suit in federal district court in Maryland, the holding company’s principal place of business.
Just as inevitable as the filing of the lawsuit in the U.S. was the defendants’ response: they moved to dismiss the case on forum non conveniens grounds, arguing that the cases did not belong in the U.S. and should be litigated in China. The court granted that motion in a very interesting decision filed last week. Tang v. Synutra International, Inc., No. DKC 09-0088 (D. Md. March 29, 2010).
The usual private and public interest factors that are part of the forum non conveniens analysis pointed strongly to China as the place where these cases should be heard. China is where all the witnesses and evidence are located; all relevant evidence would have to be translated from Chinese into English; Chinese law would apply; and the plaintiffs themselves live in China. These factors showed that the District of Maryland was clearly a non conveniens place to hear this lawsuit and favored dismissal, the court concluded. Id. at 30-33.
Continue Reading The light rebuffs the moths
Guinn Seroquel Expert Exclusion Ruling Affirmed By Eleventh Circuit
Another big win for AZ in the Seroquel MDL. The Guinn opinion excluding the plaintiff’s expert specific (that is individualized to this patient) causation opinions, that made #8 on our best opinion list for 2009 was just affirmed by the 11th Circuit in a to-be-published (that means binding precedent, folks) opinion. Here’s a copy of
How Not to Screw Up Causation
So much of what we write amounts to an argument for rigorous gatekeeping by trial courts. That’s true when we discuss Twombly/Iqbal. That’s true when we discuss Daubert. That’s also true when we discuss causation issues. “Causation” is a broad term that can include a couple of different things. For example, cases should
Two More Seroquel Summary Judgments Granted In Delaware
We can’t say much about these, because Dechert represents the defendants in Seroquel litigation, but here are two more decisions just handed down in Delaware Superior Court (Delaware courts are superior) granting summary judgments in Seroquel cases: Hopkins v. AstraZeneca, C.A. No. 06C-01-325 SER, slip op. (Del. Super. New Castle Co. March 31, 2010);
Latest in Vioxx
We can’t say much about it, since Dechert’s been involved in Vioxx litigation from the beginning, but there’s a brand new summary judgment decision in one of the state AG vioxx cases – brought by Louisiana. In re Vioxx Products Liability Litigation, No. 05-3700, slip op. Three claims were dismissed: LA consumer fraud statute,
Warning Causation – Risky Business
A very recent decision from the Fosamax litigation illustrates a causation principle that’s essential to keeping warning claims from spinning totally out of control. That principle is that there’s no claim for inadequate warnings except as to the risk that the plaintiff is suing over. Seems sort of basic, but every so often a case comes along that reminds us why this principle is important.
In Boles v. Merck & Co., 1:06-MD-1789-JFK, slip op. (S.D.N.Y. March 26, 2010), the court had earlier denied summary judgment on learned intermediary warning causation (i.e., that a different warning would have resulted in the prescriber not prescribing the drug) where plaintiff obtained an affidavit from the prescriber that he had not been warned of the relevant risk (osteonecrosis of the jaw, or “ONJ”), and that this may have affected his prescribing decision. See In re Fosamax Products Liability Litigation, 647 F. Supp. 2d 265, 282 (S.D.N.Y. 2009).
Anyway, now fast-forward to trial. In a stark reminder not to trust the affidavits that plaintiffs’ counsel stick under the noses of prescribing physicians – the good doctor’s actual testimony diverged significantly from what was in that affidavit. Boles, slip op. at 10-11. The jury hung, and the court revisited the significance of the prescriber’s causation testimony in the context of a Rule 50 motion for judgment as a matter of law.Continue Reading Warning Causation – Risky Business