A couple of weeks ago, we talked about Westminster Kennel Club Dog Show.  We were eagerly anticipating the Best in Show competition, which was slated to feature a Standard Poodle – the breed of our heart – along with a Portuguese Water Dog whose record of wins was unprecedented in dog show history.  Based on this past record, the “PWD” was heavily favored to “take the Garden.” The Best in Show judge (few assignments in dogdom carry more prestige) built the tension in the sold-out stadium to a fever pitch.  The dogs submitted to painstaking “hands on” examinations, they “free-stacked,” they gaited.   And they gaited again.  Finally, the judge, flanked by AKC officials, strode purposefully to the table to “sign the book,” then returned to the center of the ring, microphone turned on, purple and gold rosette and trophy in hand.   He made a moving speech about the history of the event, and he praised the lineup of seven gorgeous group winners.   Pausing one more time for effect, he announced, “Best in Show at the 139th Westminster Kennel Club Dog Show is . . .  the Beagle!”  The Beagle? Make no mistake – “Miss P” is a spectacular show dog, with many Best in Show wins to her credit.  She is a striking example of her breed.  And she is very, very cute.   But it just wasn’t what we expected.

We also thought we knew what to expect when we began reading the recent decision of the Superior Court of New Jersey – Atlantic County — in the Accutane Multicounty Litigation. This litigation, in which plaintiffs allege that Isotretinoin (Accutane’s chemical name) causes Inflammatory Bowel Disease (“IBD”) and Crohn’s Disease (“CD”), has been pending since 2003, and we have been troubled, at times, about an apparent plaintiff bias. Appellate courts have agreed with us, overturning a number of plaintiffs’ verdicts. (See here and here, for example.)  But we were most pleasantly surprised this time.

In In re Accutane Litigation, 2015 WL 753674 (N. J. Super. Law. Feb. 20, 2015), the Court considered defendant’s motion to exclude plaintiffs’ general causation and biostatistics experts.  The Court explained that New Jersey applies a standard less stringent than Frye’s “general acceptance” standard, in determining whether expert testimony is admissible.  Under the guiding Rubanick decision of the New Jersey Supreme Court (125 N.J. 421 (1991)), “if the methodology by which the expert reached a conclusion is sound, the conclusion may be introduced into evidence.”  Accutane, 2015 WL 753674 at *4 (citation to Rubanick omitted).  Later, in Kemp v. The State of New Jersey,  174 N.J. 412 (2002), the Supreme Court held that the trial court was obligated to conduct an evidentiary hearing “any time an expert’s theory has not attained ‘general acceptance,’” and that the failure to do so is “plain error.” Accutane, 2015 WL 753674 at *6 (citations to Kemp omitted).  Hence the moniker “Kemp hearing” to describe hearings such as the one that was the subject of the Court’s decision.Continue Reading A Pleasant Surprise from the Accutane MCL

This post is from Bexis:

In a decision reflective of how attorney solicitation dredges up bad cases that should never have been filed, a New Jersey appellate court has handed the defense three wins in its Accutane litigation involving inflammatory bowel disease (“IBD”).  Gaghan v. Hoffman-La Roche, Inc.,Nos. A-2717-11T2, et al., slip op. (New Jersey Super. A.D. Aug. 4, 2014)Gaghan involved three appeals, two from defense verdicts and one from a plaintiff’s verdict, affirming the defense wins and reversing the one adverse verdict.  The trial had been something of a circus – three unrelated Accutane plaintiffs’ cases tried together.  All three plaintiffs were litigation tourists from California, so that state’s law applied, which is probably why the decision is unpublished.  It certainly is detailed enough to be published, had it not been one state’s courts opining on the law of another state.Continue Reading Accutane Triple Win in Jersey

Several years ago we vacationed in Toronto. Back then, the Drug and Device Law Son split his time between hockey and videogames. He was a goalie, so, like his dad, he was always on defense. We visited the Hockey Hall of Fame, tap-danced on the glass floor in the CN Tower, had dinner at Wayne Gretzky’s restaurant, took in a Maple Leafs game, and wandered around the huge underground mall. With the sort of weather that reigns in the True North, an underground mall (really an entire underground city) makes a lot of sense. We noticed that many of the stores had a slogan on the walls: “The World Needs More Canada.” It’s hard to argue with that. Canada has pretty much everything we like (a nice standard of living, cultural offerings, and poutine), and not so much of those things we don’t like (crime, arrogance, and crocodiles).   How can you not admire a country that has given us Joni Mitchell, Bobby Orr, and Pamela Anderson, as well as the inventors of the zipper, basketball, and Trivial Pursuit?  And we look back with fondness at a college road trip adventure, when we drifted across the border to empty the town of Magog of Molson Brador.  (Bexis points out that Canada is also responsible for the rock groups Rush and BTO.  Hmmmm.  That fact might prompt us to reconsider the whole premise of this paragraph.)

Every once in a while we have the opportunity to blog about drug and device developments north of the border, involving matters also being litigated in the USA. As we said above, there’s a lot to like about Canada.  But its class action law is usually something we don’t like so much.  Canada’s application of class action certification rules is considerably more liberal than the corresponding rules here — excepting, perhaps, certain rogue counties in Southern Illinois.  Nevertheless, we are pleased to relay some good news from the Canadian courts.  Our friends at Covington, specifically Michael Imbroscio, sent us a decision by the Quebec Superior Court rejecting certification (what they call “authorization” in Quebec) of a proposed class action alleging that Accutane (isotretinoin) caused inflammatory bowel disease (IBD), in Lebrasseur v. Hoffmann – La Roche Limitee, (Quebec Superior Court file no. 500-06-000512-109). The decision is in French, which we cannot read (though the Drug and Device Law Son says he can, and even has the grades to prove it), so we are trusting Covington’s summary.  But for those of you who claim the ability to read Proust and Moliere in the original, here is a copy of the Quebec court’s opinion.Continue Reading Quebec Court Denies Accutane Class Certification

Not to complain or anything, but these are rough days. We were stunned by the last episode of Downton Abbey. [SPOILER ALERT for you pathetic Nigel-Come-Latelies to Downton Abbey.  Skip to the third paragraph if you are still catching up via your Betamax machine.  By the way, you might also want to try listening to a hot new musical group called The Beatles.  Also, check out vanilla ice cream.  It’s an acquired taste, but pretty darn good.]  When has a series killed off two main characters (and, arguably, the most important character, in terms of setting action in motion and being transformative) in the same season? The show is well written and splendidly acted, but it is, at bottom, cruel. The resumption of Breaking Bad will actually come as a relief; sure, there’s lots of drug dealing and murder in it, but it does not toy with our emotions nearly so much as those arch Brits. (For an interesting mash-up, see the “Breaking Abbey” skit here.)  From what we hear, the latest Downton death came about because the actor wanted to abandon the show for other acting opportunities. Mr. Stevens, we mutter a few curse words in your direction: “Daniel J. Travanti” and “David Caruso.” Good day, sir!

The expiration of a charming fictional lawyer followed by only a few days the death of a real life, regal legal eminence, Ronald Dworkin. In our first year of law school the great Edward Levi taught a class called “Elements of the Law,” which addressed the Big Questions – certainly bigger than the Rule in Shelley’s Case or the distinction between larceny by trick and obtaining property by false pretenses. In “Elements” we read from the likes of Bentham, Rawls, and Dworkin. We struggled mightily to follow Dworkin’s intricate analyses. How can a book with such a straightforward title, Taking Rights Seriously, be encumbered with such impenetrable prose? And yet Dworkin’s insistence on law’s moral dimension was undeniably refreshing. Dworkin was the second most cited legal scholar of the 20th Century, exceeded only by our favorite Seventh Circuit Judge, the one who launched our occasional postings on why “There’ll Always be Posner.” Dworkin ennobled our profession, even as he often puzzled it.

Meanwhile, the same issue of the Wall Street Journal with Dworkin’s obituary also informed us that fish exposed to certain anti-anxiety drugs (via industrial run-off or sewage) become less social but braver. Granted, we are not sure how to define ichthyo-courage, but the story had us hooked. It also made us feel somewhat anxious. As is all too often the case, we find ourselves wondering how bits of news and popular culture would affect judges and jurors. It might well be that a timid perch could benefit from a random dose of an antianxiety medication. The fish’s consumption of the Mickey Fin might have been off-label, but we do not think an over-enthusiastic sales rep played any role in luring in that particular customer.  Still, we couldn’t help but think that some readers would take this fish-story (the one that did not get away) as further evidence of corporate perfidy and bad drug side effects. We are swimming through the waters of a double standard. The scales are weighted against corporations, which are held to a higher standard and suspected of the worst means and motives.Continue Reading Accutane MDL Court Dismisses 40 Cases for Plaintiffs’ Failure to Meet Expert Designation Deadline

In 2008, three Florida resident plaintiffs, in a joint trial, won jury verdicts in New Jersey state court on claims that Hoffman-La Roche had not adequately warned about the alleged link between ingesting Accutane and developing inflammatory bowel disease.  Two days ago, the New Jersey Superior Court Appellate Division reversed.  Sager v. Hoffmann-La Roche, Inc.

This just in.  A federal MDL court in Florida has granted summary judgment in an Accutane case, holding that the drug’s warnings with respect to inflammatory bowel disease (“IBD” – the same claims that have produced significant jury awards in certain other venues that shall remain nameless) are adequate as a matter of New York

Sometimes, we feel as though we’re writing in code.
Take the headline of this post, for example, which talks about the Accutane MDL IBD cases.
So be it, we suppose: There’s not a very good alternative.
Two years ago, Judge Moody, who’s overseeing the Accutane MDL, granted Hoffman-La Roche Inc’s motion to exclude plaintiffs’ general