While some of us are naturally jacked up—have you seen Bexis in short sleeves?—others turn to supplements to build up their beach bodies. We are not talking about the injectables favored by 1970s East German Olympians or 1980s NFL draft flops. And certainly not the supplements advertised on late night television as more targeted enhancers.
This post comes from the Cozen O’Connor side of the blog only.
City of Chicago v. Purdue Pharma L.P., 2015 U.S. Dist. Lexis 60587 (N.D. Ill. May 8, 2015), deals with an effort by the City of Chicago to recover payments it made to drug companies on opioid prescriptions for City employees (and retirees) covered by HMO, PPO and worker’s compensation plans. Id. at *9-11. Chicago claimed that it should get its money back because the drug companies misrepresented that the opioids were effective for more than short-term treatment of cancer pain. The City lost—at least for the time being.
The City claimed that the drug companies had mounted a coordinated campaign to use key opinion leaders to write, speak and create guidelines on long-term opioid therapy, use professional and patient advocacy groups as marketing tools, develop and support medical journal articles on long-term opioid therapy, misuse CME programs to market such long-term therapy, and more. In this campaign, according to the City, the drug companies overstated the effectiveness of opioids, downplayed the effectiveness of alternatives, and hid or understated risks such as addiction. Id. at *4-9. The City made common law fraud, conspiracy and unjust enrichment claims, and claims under certain Chicago municipal codes that, among other things, incorporated the Illinois Consumer Fraud and Deceptive Businesses Practices Act. E.g., Chicago Municipal Code § 2-25-90. Chicago asked for its money back and, as is often the case, hired private counsel to help them get it. Read here for our take a number of years ago on efforts by municipalities to recover these and other types of costs.Continue Reading Another Municipality Tries to Recover Its Costs for Pharmaceuticals
It was big news that there will be a six hour return of The X-Files, a show that dazzled us from 1993 to 2002. The “myth-arc” episodes about an alien invasion, black oil, and the disappearance of Special Agent Mulder’s sister were overwrought and confusing, but the standalone entries were television at its creepy best. The bullpen of X-Files writers was stellar, including, among others, Darin Morgan and Vince Gilligan. You probably have heard of Gilligan, since he later went on to helm a program now carved on the medium’s Mt. Rushmore, Breaking Bad. (Gilligan’s current show, Better Call Saul, is also quite good. And the ‘hero’ is a lawyer!) Morgan is less well-known, but he penned some of the most admired X-Files episodes, which married humor to mystery in ways not matched since. If you want to treat yourself to three hours of splendid viewing, fire up Netflix and take in these four all-time great X-Files episodes, the first two by Morgan and the latter two by Gilligan:
Continue Reading Illinois Appellate Court Misapplication of Bartlett Preemption: The Monster Case of the Week
Today’s case under discussion, Robison v. Orthotic & Prosthetic Lab, Inc., 2015 Ill. App. LEXIS 68 (Ill. App. Ct. Feb. 4, 2015), makes us think of Jim Carrey, George Costanza, and Bruce Willis. You might already have heard of the Robison case. Only a week old, this product liability case, involving a claim that a prosthesis failed, has quickly garnered notoriety. The Illinois appellate court threw out a settlement because the plaintiff attorney extracted that settlement without bothering to disclose that his client had died.
Why do we think of those three particular cultural icons? To begin, let’s lay out the procedural posture of the Robison case. The defendant appealed from an order enforcing a settlement agreement in the product liability action. The defendant argued that the settlement agreement was invalid because the attorneys who purportedly represented the plaintiff during settlement negotiations lacked the authority to negotiate a settlement inasmuch as the plaintiff had died and a proper representative of the estate had not been substituted as the party plaintiff. (The substitution process begins with the quaintly named “suggestion of death” that many jurisdictions, including our home jurisdiction here in the Commonwealth of Pennsylvania, require.) The defendant also contended that the settlement agreement was invalid because the attorneys who purportedly represented the plaintiff during settlement negotiations failed to disclose the material fact that the plaintiff had died eight months prior to the commencement of the negotiations. Got it?Continue Reading The Death of a Client is a Material Fact That Must Be Disclosed in Settlement Negotiations
Any time you find yourself drawing an analogy to asbestos lawsuits, you know you’re in trouble. We have too often heard plaintiff lawyers or, worse, judges advocate for borrowing procedures from asbestos litigation. Almost always those procedures would make it easier for plaintiffs to ‘prove’ little things like product identification, and would abridge defendants’ rights
Over the past week, we received two new decisions from our readers. This post is about the first of them (there’s an internal hang-up with the other, that we hope will clear up shortly).
The first case sent to us is In re Plavix Related Cases, 2014 WL 3928240 (Ill. Cir. Cook Co. Aug.
Sometimes it’s that simple. Melton v. Ortho-McNeil Pharm., Inc., 2014 U.S. Dist. LEXIS 78917, at *1-2 (N.D. Oh. June 10, 2014), is another Ortho Evra birth control patch case in which the plaintiff suffered a pulmonary embolism. The manufacturer’s label and one of its dear health care provider letters explicitly warned of this risk;
We start June with a fabulous two-fer: yes, that is two cases discussed in the same post. But wait, there’s more. The two cases each discuss civil RICO claims against drug companies and state law claims. For an unknown, but surely exorbitant, cost to the defendants, the courts, and maybe even the third party payors
We talk about preemption so often that we can be hesitant to post on preemption cases unless we can see that they offer something new or different. (Except for Bexis. Preemption is like his morning, afternoon, and evening coffee.) When we saw that there was a generic preemption decision in the Yaz litigation, we were
The Actos litigation has a way of being topsy-turvy these days. We discussed not too long ago the epic ediscovery fail in that litigation, whereby a defendant, because of overbroad litigation holds that it allowed to persist even after the litigation that had generated them had long since disappeared, was held to have spoliated evidence at a time when there was no Actos litigation. Appallingly, plaintiffs were allowed to “presume” prejudice from the loss of the information – when it’s not at all clear that the missing information wasn’t, in the end, discovered either in other employee files or from third-party discovery. In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 355995, at *26-28 (W.D. La. Jan. 30, 2014). The missing Actos files were destroyed when people left the defendant’s employ, rather than in any extraordinary attempt to sanitize files. Id. at *26.
The effects of this unusual ruling evidently continued at the first Actos trial. According to a post last week on the E-Discovery Law Alert (a blog specializing in ediscovery):
[The judge instructed the jury after closing arguments Monday that they could take [defendant’s] evidence spoliation into account. Additionally, throughout the trial, the jurors were exposed to voluminous evidence detailing [defendant’s] conduct in destroying the relevant evidence.
As a result we ended up with a $9 billion punitive damages verdict where the plaintiff received all of $1.5 million in compensatory damages. That’s a ratio of six thousand to one. The Supreme Court and most state courts consider any ratio above 10:1 presumptively unconstitutional. A ratio this large, we think, is not only unconstitutional, but is presumptively the product of what lawyers call “passion and prejudice” on the part of the jury. A verdict based on passion and prejudice is typically thrown out in its entirety. This one certainly should be.Continue Reading Actos – Finally Some Sanctions-Related Sanity