Friday, April 27, 2007
Op-ed in the Wall Street Journal -- Tort Tribute, by Kimberley Strassel. Here's an excerpt:
Using hearing and subpoena power to aid the trial bar is an old play, and was common when Democrats were last in control. Remember the 1998 Big Tobacco settlement, one of the biggest paydays in trial-lawyer history? The groundwork was initially laid in Congress with Mr. Waxman's 1994 hearings, in which he lined up tobacco executives to accuse them of adding nicotine to their products and of lying in their testimony. These fishing expeditions helped to publicly vilify the industry, softening it up for a later legal collapse.
When Democrats lost power in 1994, the "investigatory" role passed to liberal state attorneys general such as New York's Eliot Spitzer, who used their own power to embarrass companies and leak details that helped their trial-lawyer friends. Which industries will receive the most congressional summonses in the next 18 months? The very same the trial bar has been trying hardest to crack in recent years: MTBE manufacturers, pharmaceutical companies, oil giants. Bet on it.
Meanwhile, as companies are dragged in to explain past actions, Democrats will be working on their second strategy: ensuring industries' future actions are also more open to lawsuits. This will come in the form of small, seemingly innocuous additions or subtractions to legislation -- what might best be termed "trial lawyer earmarks." For a sense of how these work, consider the current $120-plus billion Iraq war supplemental, which includes a section about chemical security.
Seton Hall Law School announced a new Center for Health and Pharmaceutical Law, endowed by Schering-Plough Corporation, sanofi-aventis, Johnson & Johnson, and Bristol-Myers Squibb, as well as an expansion of the law school's Institute of Law, Science, and Technology, endowed by the Gibbons law firm. Here's the press release.
Thursday, April 26, 2007
Article in the New England Journal of Medicine -- A National Survey of Physician–Industry Relationships, by Eric G. Campbell, Ph.D., Russell L. Gruen, M.D., Ph.D., James Mountford, M.D., Lawrence G. Miller, M.D., Paul D. Cleary, Ph.D., and David Blumenthal, M.D., M.P.P. Here's an excerpt from the abstract:
Results Most physicians (94%) reported some type of relationship with the pharmaceutical industry, and most of these relationships involved receiving food in the workplace (83%) or receiving drug samples (78%). More than one third of the respondents (35%) received reimbursement for costs associated with professional meetings or continuing medical education, and more than one quarter (28%) received payments for consulting, giving lectures, or enrolling patients in trials. Cardiologists were more than twice as likely as family practitioners to receive payments. Family practitioners met more frequently with industry representatives than did physicians in other specialties, and physicians in solo, two-person, or group practices met more frequently with industry representatives than did physicians practicing in hospitals and clinics.
Conclusions The results of this national survey indicate that relationships between physicians and industry are common and underscore the variation among such relationships according to specialty, practice type, and professional activities.
Here's a link to the related Wall Street Journal story, Gifts to Doctors are Widespread, by Joseph Pereira.
Wednesday, April 25, 2007
TortsProf Blog flags another story on Zyprexa from Alex Berenson of the New York Times.
Products Liability Prof Blog posts a link to a story on a meager punitive verdict in a Ford rollover case, delivered after Ford noted its layoffs and losses.
Civil Procedure Prof Blog has a post on the 2007 U.S. Chamber of Commerce rankings of states for tort law climate.
Point of Law has a post celebrating a California opinion questioning the oursourcing of government lawsuits to plaintiffs lawyers.
Article in the Washington Post -- FDA Was Aware of Dangers To Food: Outbreaks Were Not Preventable, Officials Say, by Elizabeth Williamson. Here's an excerpt:
The Food and Drug Administration has known for years about contamination problems at a Georgia peanut butter plant and on California spinach farms that led to disease outbreaks that killed three people, sickened hundreds, and forced one of the biggest product recalls in U.S. history, documents and interviews show.
Overwhelmed by huge growth in the number of food processors and imports, however, the agency took only limited steps to address the problems and relied on producers to police themselves, according to agency documents.
Congressional critics and consumer advocates said both episodes show that the agency is incapable of adequately protecting the safety of the food supply.
FDA officials conceded that the agency's system needs to be overhauled to meet today's demands, but contended that the agency could not have done anything to prevent either contamination episode.
Article in the Washington Post -- FDA to Test Imported Additives for Melamine, by Marc Kaufman and Rick Weiss. Here's an excerpt:
Concerned that a wide variety of Chinese vegetable protein products may be contaminated with the harmful compound melamine, the Food and Drug Administration said yesterday that it will begin testing batches of six imported ingredients used in pet foods and livestock feed, as well as additives to human food.
Officials have not found the substance in food products for people but detected it in two imported ingredients widely used in pet food: wheat gluten and rice protein. The agency said that imported corn gluten, corn meal, soy protein and rice bran will also be tested. The vegetable proteins are used in bread, pizza, baby food and many vegetarian dishes.
Tuesday, April 24, 2007
Article in the New York Times -- Medicine and the Drug Industry, a Morality Tale, by Abigail Zuger, M.D. Here's an excerpt:
Less familiar may be some of industry’s other friendly overtures: the lavish junkets and cash rewards for some “high-prescribing” doctors; the subtle manipulations of research data; the way-too-generous financing of postgraduate medical education; the very cozy relationship with the Food and Drug Administration and its physician consultants; and a casually Orwellian interference with the average physician’s prescription pad.
A drug salesman recalls for Dr. Brody the time his company asked a local doctor to evaluate various sales presentations for a particular drug: “He’d been selected because our data showed that he was a relatively low prescriber. ...Basically, the company was willing to bet $500 or $750 that if he heard the same drug pitch all day, by the end of the day he’d be so brainwashed that he could not possibly prescribe any other drug but ours.”
All this mutual back-scratching would be fine if patients’ interests were indeed being served. But ample data indicates quite the reverse. Patients, after all, are the ones who pay for expensive drugs when cheaper would do as well, and the ones who swallow dangerous drugs nudged to market by their manufacturers.
The epitaph of the recently withdrawn painkiller Vioxx, whose virtues were subtly spun to the medical community in prestigious research journals, is still being written in litigation around the country.
“Research that is driven by marketing rather than by scientific aims would seem, in the end, to be low-quality research,” Dr. Brody comments mildly about the Vioxx fiasco.
As noted by Michael Kraus at Point of Law, interesting article on law.com -- N.Y. Court Refuses to Revive Smoking Suit Filed Years After Limitations Period, by Joel Stashenko. Here's an excerpt:
A man who started smoking when he was 9 and did not quit until he underwent throat cancer surgery 30 years later is time barred from suing cigarette companies for his disease, a New York Appellate Division, 3rd Department, panel has ruled.
A four-justice panel denied Warren Robare's attempt to invoke the doctrine of equitable estoppel to prevent the defendant tobacco companies from successfully asserting the three-year statute of limitations as a defense. Citing Putter v. North Shore Univ. Hosp., 7 NY3d 553-554 (2006), the court said Robare had "timely awareness" of his cancer and its possible link to cigarettes since, at the latest, May 1991.
"The record establishes that plaintiff quit smoking on May 13, 1991, the day of his throat surgery, because he realized he was addicted to cigarettes and he knew they were generally harmful to his health," Justice Carl J. Mugglin wrote for the court.
Commentary in the Wall Street Journal -- Risky Drug Business, by Richard Epstein. Here's an excerpt:
Sen. Edward Kennedy fired the latest shot in the battle over pharmaceutical regulation last week with the introduction of his FDA Revitalization Act. And, surprisingly, those who want to speed up the drug approval process will cheer the centerpiece of his bill: A "Sense of the Senate" that declares the Prescription Drug User Free Act (PDUFA) a success.
PDUFA, which was first adopted in 1992, uses funds from a tax on drug companies to speed up FDA internal procedures. Set to expire in September, Sen. Kennedy's support for it now is an indication that the Senate will not get hung up on the criticism that has emerged in the past -- that it turns the agency into a tool of the drug industry. PDUFA does not guarantee drug approval, which continues to be judged under regular agency rules. But on average it has shortened the unfortunate (and deadly) delays in reviewing new drug applications by six months. And it has done so without reducing the quality of the approvals.
Nonetheless, these new procedures might lead to other significant reforms. One would reward with cash, not burden with paperwork, the physicians, who report adverse incidents to the government, on the grounds that carrots get more information than sticks. Second, the FDA might let up a bit on its hostility toward allowing new drugs on the market, as evidenced by last week's resounding 20-1 decision by an FDA advisory committee to reject Merck's Arcoxia, a Cox-2 inhibitor in Vioxx's class of drugs. More than 60 other countries have already approved Arcoxia for sale. If only the FDA had stated that it would be more receptive to letting Arcoxia and other drugs onto the market once post-marketing review procedures are improved.
But neither Congress nor the FDA has mastered the fundamental lesson of risk analysis. Keeping drugs off the market deprives all informed patients the opportunity to correct FDA errors. Letting new drugs on the market leaves individual patients the option to decline their use. In the long term, Congress must wean the FDA from its misapplied "first, do no harm" principle, which causes far more harm than it prevents.
Monday, April 23, 2007
Article on cnn.com -- Amgen earnings meet forecasts: Biotech's income surges 19% in latest quarter; 15% gain in revenue just below expectations; future uncertain for Aranesp sales, by Aaron Smith. Here's an excerpt:
Amgen (up $0.22 to $62.19, Charts, Fortune 500) reported a 19 percent surge in non-GAAP first-quarter earnings, or earnings that do not include certain charges, to $1.08 per share for 91 cents a year earlier. That met the analyst consensus from Thomson First Call.
Amgen, based in Thousand Oaks, Calif., reported a 15 percent jump in total revenue to $3.69 billion from $3.22 billion in the prior year. Analysts surveyed by First Call projected revenue of $3.73 billion.
George Morrow, chief of global commercial operations, said Amgen won't be able to provide a clearer picture of future revenue before weighing the impact on insurers from heightened FDA warnings regarding anemia drugs Aranesp and Epogen.
Aranesp and Epogen are often used in conjunction with chemotherapy, which can cause anemia, a condition caused by the reduction in red blood cells produced. Recent studies showed these drugs may increase the risk of death in cancer patients, according to the FDA.
The Food and Drug Administration required heightened safety warnings for Aranesp and Epogen, as well as for Procrit from Johnson & Johnson (down $0.37 to $64.75, Charts, Fortune 500).
Here's a link to the Associated Press story, Amgen’s Profit Rises, but Does Not Meet Expectations, which appeared in the New York Times.
In-depth article in yesterday's Philadelphia Inquirer about the mounting litigation concerning contaminated pet food -- Chasing Justice in Pet Food Lawsuits. The article by Emilie Lounsberry notes that at least 50 class actions have been filed, largely in New Jersey where primary defendant Menu Foods has a plant. In addition to lawyers specializing in animal rights, according to the article, "[t]he recall also has drawn lawyers who specialize in class-action and mass-tort cases involving injury to complainants of the two-legged variety, such as the gargantuan litigation over the diet drug fen-phen and the pain reliever Vioxx." Indeed, it sound like the litigation is shaping up much like other mass tort litigation, with claims for medical expenses, medical monitoring, and emotional distress (which would require a significant shift in the law's treatment of animals). Here's an excerpt:
Attorneys for hundreds of pet owners nationwide already have taken aim at some of the companies that have recalled more than 120 varieties of dog and cat food since March 16. By far, the target of choice is Menu Foods Inc., the Canada-based manufacturer of about 100 of the tainted product lines.
As of Friday, at least 50 class-action lawsuits had been filed in federal courts; most are in New Jersey, where Menu has a Pennsauken plant. State courts are likely to be hit, too. For while the Food and Drug Administration has confirmed only 16 deaths, informal tallies by veterinary groups and pet Web sites put fatalities above 3,000, with possibly 10,000 more sickened after eating batches made with melamine-tainted wheat gluten from China.
Only days ago, panic struck again with the recall of rice protein, also from China, shipped to U.S. pet-food makers. The importer said it, too, might contain melamine, used in fertilizers and plastics.
"It's just getting bigger and bigger," said Casey Srogoncik, a Northeast Philadelphia lawyer who is gathering up clients.
The owners' lawsuits seek compensation for costs ranging from burials to ongoing care of survivors. State Rep. Mark Cohen and his wife, Mona, of Northeast Philadelphia, nearly lost their Yorkie bichon, Cookie. They've joined a federal class-action lawsuit that, while typically not stating a specific dollar amount, asks for such relief as a fund for medical monitoring and treatment of lingering health problems.
But the big-ticket question is not who will pay the vet bills, legal experts say. It's whether owners will be entitled to damages for emotional distress.