One of the many methods of aggregating litigation is an action filed by a governmental unit acting as “parens patriae.” See Principles of the Law of Aggregate Litigation §1.02 & Reporters notes to comment b(1)(B) (ALI 2010). Such actions, in which a “[g]overnmental actor” has “authority to speak for citizens on matters of
We call them like we see them – which of course is with a defendant’s eye. But nonetheless, excellent is how we view Solomon v. Bristol-Myers Squibb Co., 2013 U.S. Dist. LEXIS 534 (D.N.J. Jan. 3, 2013). And while the ruling was made by a New Jersey federal court judge, it is all about Texas learned intermediary law. It may have taken until late 2012 for Texas to join the ranks of states adopting the learned intermediary doctrine, but now that it has we get to enjoy decisions like this. It is so chock full of golden nuggets, we think it best to just walk you through the highlights. If you have a drug or device case pending in Texas, you’ll want to read the whole opinion more closely – and here’s why.
The case involves Plavix – an antiplatelet drug, more commonly thought of as a blood thinner typically prescribed to people who have had heart attacks, strokes, or other cardio- or vascular-related illnesses. Because its job is to inhibit the formation of clots, it carries a risk of increased bleeding. Its label sets forth that risk in great detail. Id. at *4-6. Plaintiff Solomon suffers from coronary artery disease and following stent placement post-heart attack, he was prescribed combination Plavix and aspirin therapy. After approximately 2 ½ years, plaintiff suffered chronic gastrointestinal bleeding requiring repeated blood transfusions and surgery. Id. at *6-7. Then he brought his lawsuit asserting several products liability claims under Texas law – all of which boil down to whether there was a failure to warn of the risk of bleeding. Id. at *8. And because there was no failure to warn – plaintiff has no claim.
Toward the end of a nice recitation of Texas’s learned intermediary law, id. at *11-16, we get our first highlight – no heeding presumption. The Texas Supreme Court hasn’t created such a presumption, the Fifth Circuit has predicted that they won’t, and there is no other authority to the contrary. Id. at *16-17. Short, sweet and to the point.Continue Reading Excellent Texas Learned Intermediary Decision
The recent magistrate’s decision in Fecho v. Eli Lilly & Co., 2012 WL 6681895 (Mag. D. Mass. Dec. 21, 2012) (“Fecho II”), isn’t good, but it could have been far worse. While the decision stretches prescription drug warning causation to the breaking point, at least it didn’t do what the plaintiffs sought, which was the wholesale importation of asbestos-style tactics of proving causation into drug litigation. Still, to escape summary judgment required unprecedented application of both the Federal Rules of Evidence and Pennsylvania law (although not the law ordinarily applied in product liability cases).
Here’s what went on. Fecho is a testament to old litigation not dying, but spreading to different injury allegations. Fecho involves DES. That’s right old-fashioned diethylstilbestrol – prohibited from use in pregnant women by the FDA since 1971. As everyone in our line of work knows, DES is linked to a rare type of cancer in young women exposed in utero – a cancer that developed around the time of puberty.
That development, of course, brought about a wave of litigation over events that happened – due to the delay in cancer development – between one and three decades earlier. Because DES was never patented, many DES plaintiffs could not determine who made the drug they were exposed to. That proof problem led pro-plaintiff courts in the 1980s to invent “market share liability,” which all in all was probably the radical and ill-conceived expansion of tort liability of our legal lifetimes. Fortunately, most states didn’t adopt it.
But time passes, and with the youngest of the so-called “DES daughters” now over 40, one would expect the statute of limitations finally to put this litigation to bed – NOT!
Rather than finding something else to sue over, plaintiffs (some of them, anyway) are now claiming that the same in utero exposure to DES causes breast cancer. Unlike the DES litigation of the 1980s and 1990s, the medical causation science for this new theory isn’t very good, being limited to a couple of studies that plaintiffs’ experts have to massage thoroughly in order to discover any statistically significant increase in any “cohort.” See Fecho v. Eli
Lilly & Co., 2012 WL 194419, at *2 (Mag. D. Mass. Jan. 20, 2012) (expert found statistical significance in one “subset” of first study that “could be characterized as too thin” only after “control[ing] for” unspecified “confounding factors”); id. (second study had an even “smaller hazard ratio,” so the expert “discounted an excess risk calculation in preference for a proportionate hazards model”) (“Fecho I”). Not only that, but there’s no distinction between purported DES breast cancer and any other breast cancer. Id. (“temporal relationship between the exposure and the development of the disease . . . tracks the natural age at which breast cancer typically appears”). In short, DES breast cancer litigation not only has all the causation problems of earlier DES litigation, but junk medical causation science has replaced the prior “signature disease.”Continue Reading Asbestos Causation Tactics And Pharmaceutical Litigation
We read
the decision in Tigert v. Ranbaxy Pharms.,
No. 12-00154 (RBK/JS), 2012 U.S. Dist. LEXIS 178475 (D.N.J. Dec. 18, 2012),
with interest. It involved a recurring
question that the Supreme Court failed to address in Warner-Lambert Co. v. Kent, 552 U.S. 440 (2007)—whether state
statutory provisions that require a plaintiff to
The following post was sent to us by Brendan Kenny of Blackwell Burke. It concerns a new Illinois Supreme Court case that could have significant impact on out-of-state plaintiffs’ ability to keep their cases in Madison, St. Clair, etc.
As always with guest posts, the credit/blame goes solely to the poster. We’re only the