Friday, October 6, 2006
The Federalist Society is sponsoring a panel discussion on Oct. 12 in Washington, D.C. entitled "Mass Fraud in Mass Torts?" Panelists include Professors Lester Brickman and Francis McGovern, Attorneys Patrick Hanlon and Joseph Rice, and Judge Douglas Ginsburg as moderator.
Article on law.com -- Nevada Cancer Patient Reaches Accord With Wyeth in Prempro Case -- by Associated Press:
The same day a Philadelphia jury ruled that a hormone replacement drug at least partially caused a woman's breast cancer, a Reno woman who is dying of the disease reached an out-of-court settlement with the New Jersey-based drug maker.
Just two days before her trial was to begin, Carol McCreary and Wyeth Pharmaceuticals told Washoe District Judge Robert Perry on Wednesday they have resolved the case. Both sides agreed that the terms of the settlement will remain confidential.
If the report is correct that Wyeth settled this Prempro case, it's an interesting contrast to Merck's no-settlement strategy in the early stages of the Vioxx litigation.
Thursday, October 5, 2006
Article in the Washington Post -- Report Ties Cancers to 1959 Lab Meltdown, by Robert Jablon of the Associated Press:
A 1959 nuclear reactor meltdown at the Santa Susana Field Laboratory in eastern Ventura
County may have caused hundreds of cancers in the surrounding community while chemicals
from the site threaten to contaminate local ground and water, according to a report
The report by an independent advisory panel estimated it was likely radiation released
during the meltdown caused about 260 cancers within a 60-square-mile area around
the reactor. There was a slim chance the numbers could be as high as 1,800, according
to the report, which relied on technical modeling rather than hard data.
The panel said the federal government and the lab's former owner, Rocketdyne, have
refused to release many key details of the incident.
The Los Angeles Times has a more detailed treatment of the story in its article, Study Says Lab Meltdown Caused Cancer, by Amanda Covarrubias:
Radioactive emissions from a 1959 nuclear accident at a research lab near Simi Valley
appear to have been much greater than previously suspected and could have resulted in
hundreds of cancers in surrounding communities, according to a study released Thursday.
Chemical contamination from rocket engine testing at the site continues to threaten soil
and groundwater in the area around Rocketdyne's Santa Susana Field Laboratory, the study
The nuclear meltdown, which remained virtually unknown to the public until 1979, could
have caused between 260 and 1,800 cases of cancer "over a period of many decades," the
The Los Angeles Times article also includes a link to a video news report from local television network KTLA.
Article in today's Washington Post -- Toddler's Death Linked to E. Coli Outbreak, by Rebecca Boone of the Associated Press:
A 2-year-old boy who died from kidney failure last month had been infected with the
same strain of E. coli bacteria that prompted a nationwide consumer warning on fresh
spinach, health officials said Thursday.
Kyle Allgood's was the second confirmed death in the outbreak, which also killed an
elderly Wisconsin woman and sickened at least 190 other people.
Wednesday, October 4, 2006
In the first state court Prempro trial, the jury today returned a verdict in favor of the plaintiff in the first phase of the trial. The Pennsylvania state court jury found that Wyeth's hormone replacement therapy was a cause of the plaintiff's breast cancer, and determined that the amount of compensatory damages would be $1 million for Jennie Nelson and $500,000 for her husband.
It's a "reverse bifurcation" phased trial. In the first phase, the jury determined causation and compensatory damages. In the second phase, the jury will determine liability, and depending on the outcome, punitive damages. In other words, the jury has not yet determined whether Wyeth is liable; there has been no determination of negligent failure to warn. Thus, although the determination of causation is a setback for Wyeth, the significance of this verdict depends mightily on what happens in the second phase.
The verdict did not come easy. Last week, the jurors informed the judge that they were deadlocked, but the judge ordered them to continue deliberating. Yesterday, the foreperson told the judge that they were close to a verdict, but today a juror was removed and replaced with an alternate. The verdict was announced shortly thereafter.
Last month, a jury found in favor of Wyeth in the first federal court Prempro trial.
Article in today's Los Angeles Times -- Merck to Face 40,000 Vioxx Suits, Officials Say, from Bloomberg News: "Merck & Co. will face about 40,000 claims over its withdrawn Vioxx painkiller once deadlines for filing lawsuits lapse around the U.S., court records and lawyer estimates show."
Article in today's Los Angeles Times -- Judge Bars 'Light' Cigarette Ads, from the Associated Press:
A federal judge has denied a request by tobacco companies to let them keep marketing
"light" and "low tar" cigarettes until an appeal is completed in their case.
U.S. District Judge Gladys Kessler ruled in August that the cigarette makers violated
racketeering laws and misled the public about the health consequences of smoking.
Tuesday, October 3, 2006
Professor Alexandra Lahav of University of Connecticut School of Law has posted on SSRN an interesting working paper, Rehabilitating Bureaucracy. The working paper will subsequently be published in the Florida Law Review in 2007. Here's the abstract:
This article critiques the idea that federal courts should avoid administering routine claims. The federal courts are faced with large numbers of routine claims, such as those resulting from mass torts, systematic civil rights violations and consumer fraud. Federal judges, concerned about the transformation of the judicial role from adjudicator to administrator (or, worse yet, technocrat), have avoided the necessity of administering such mass claims through the application of various narrowing legal doctrines. These procedural constraints have limited the availability of mass claims resolution procedures within the courts, such as the class action, and have driven claims administration to various forms of private ordering. Instead of preserving the day in court ideal, this narrowing approach has actually heralded its demise. Using as an example the litigation surrounding the dangerous diet drug combination Fen-Phen, the article describes how regulatory failure produces mass torts, resulting in an influx of cases into the federal courts. The courts, loath to oversee the administration of such routine claims and too overwhelmed to treat each case individually, encourage complex settlements to privately administer claims. There are legitimate reasons to fear the bureaucratic administration of mass tort claims in the courts. These reasons, including fear of erroneous determinations, alienation and capture, are the same concerns that animated the debate over the rise of administrative agencies in the last century. But administration also has its virtues. It serves broader democratic goals, such as access to justice, that ought to be recognized. When judges avoid the administration of mass claims, they are not deferring to the legislature. Rather, they are ceding power to private actors who, history has proven, will harm large numbers of individuals in the absence of regulation. Instead of limiting administration in the courts and deferring to private ordering, we need to develop a positive vision for court administration of large numbers of routine claims: a humanized bureaucracy that is exposed to public scrutiny and understood as an important, sophisticated judicial function intended to realize the widely recognized values of the legal system.
The number of Vioxx lawsuits surged in the weeks leading up to September 30, according to this AP news report in Business Week Online and this Dow Jones news report in Market Watch. Because many states have two-year statutes of limitations, this mass of filings comes, as expected, two years after Merck's withdrawal of Vioxx from the market on September 30, 2004. According to these news reports, the recent filings bring the total number of Vioxx cases to about 22,000, including over 14,000 in New Jersey state court, nearly 7,000 in the federal MDL, and about 1400 in other state courts.
These new filings and the passing of the two-year mark should give the parties a somewhat clearer picture of the overall scope of the Vioxx litigation. Some have speculated that with the passing of the statute of limitations for Vioxx claims in many states, settlement becomes more plausible as Merck may worry less about the elasticity of the litigation. The information about recent case filings also underlines the extent to which this litigation remains heavily concentrated in two courts -- Judge Fallon's MDL in the Eastern District of Louisiana and Judge Higbee's statewide coordinated mass tort litigation in Atlantic City, New Jersey.
In the second trial against Wyeth concerning Prempro, a hormone replacement therapy alleged to cause breast cancer, the jury foreperson informed the judge late Tuesday that the jury is close to reaching a verdict. After a two-week trial in Pennsylvania state court, the jurors last week had told the judge that they were at an impasse, but the judge ordered them to continue deliberating. This is the first Prempro trial in state court. Two weeks ago, a jury in the first federal court Prempro trial rendered a verdict for the defendant.
Monday, October 2, 2006
Article in today's Los Angeles Times -- Reconfigured Supreme Court Takes Up Cases, by David G. Savage. The article discusses the upcoming October 31 oral argument in the Williams tobacco case, concerning the limits for punitive damages.
Sunday, October 1, 2006
Article in today's Los Angeles Times -- Food, Drugs and a Beleaguered Agency, by Ricardo Alonso-Zaldivar:
The Food and Drug Administration has been in the spotlight lately because of
problems in two of its most important areas of responsibility: making sure that
the nation's food supply is uncontaminated and that its prescription drugs are safe.
The recent outbreak of E. coli infections linked to California-grown spinach has
exposed weaknesses in federal food safety regulation.
Separately, a blue-ribbon panel of the Institute of Medicine has found serious gaps
in the way the FDA monitors prescription drugs to catch rare but potentially deadly
side effects that come to light only after medications are on the market. The institute
is part of the National Academies, which advise the government on scientific and