Friday, January 26, 2007
Article in the Chicago Tribune -- Brain injury tied to halt in smoking: Research on neural circuitry offers hope of powerful treatment to break nicotine's grip, by Michael Stroh:
In a finding that could lead to powerful new treatments for smokers unable to quit, scientists have discovered that people who experienced stroke damage to a prune-sized spot deep within the brain suddenly lost the urge to light up.
The research, published Friday in the journal Science, appears to underscore nicotine's far-reaching grip on a smoker's neural circuitry--and how much there remains to learn about it. Until now, addiction researchers have largely ignored the brain structure implicated in the study--a region called the insula.
"It's a really tremendous paper, one that points us in a whole new direction," says Steven Grant, who serves as chief of the clinical neuroscience branch of the government's National Institute on Drug Abuse. He was not involved in the study. "It says: This is a brain area the addiction field needs to focus a lot of attention on."
While intentionally inflicting damage on a smoker's brain is ethically out of the question, scientists said it may be possible to mimic the effect of insula injury with drugs or other therapies. Such treatments also may help people addicted to chemicals other than nicotine, researchers said.
The New York Times also has an article -- In Clue to Addiction, Brain Injury Halts Smoking, by Benedict Carey.
American Conference Institute is hosting the 4th National In-House Counsel Conference on Managing Complex Litigation on February 6-7 in New York. I'll be speaking on Ethical Constraints in Complex Litigation, focusing on joint defense groups, aggregate settlements, and conflicts of interest. Other speakers include special masters Kenneth Feinberg and Gregory Miller, Judges Mark Bernstein and Richard Kramer, and a mix of in-house lawyers and defense litigators including Anne Cohen, Steven Glickstein, David Herr, and John Hooper.
The Eastern District of Pennsylvania yesterday denied class certification in Blain v. Smithkline Beecham (E.D. Pa. Jan. 25, 2007). The plaintiffs sought certification of a Rule 23(b)(3) class action of all persons whose children under age 18 committed or attempted suicide while using the antidepressant drug Paxil. Judge Savage found that the class failed to meet typicality, adequacy, predominance, and superiority. Individual issues of causation, damages, and defenses would overwhelm the common issues, the court found, and differences in state tort law would make the class action unmanageable. Beck and Herrmann offer a defense-oriented analysis, including a handy list of federal cases that have rejected class actions for prescription medical product cases, as well as an argument against the American Pipe tolling rule for the statute of limitations (via Point of Law).
Thursday, January 25, 2007
Samuel Issacharoff has posted on SSRN his paper Settled Expectations in a World of Unsettled Law: Choice of Law after the Class Action Fairness Act, forthcoming in Columbia Law Review. The problem of variations in applicable state law, of course, has been a key obstacle to certification of nationwide or multistate class actions in mass tort cases such as Castano (tobacco), Rhone-Poulenc (blood products), Bridgestone-Firestone (tires), and Amchem (asbestos). Here's the abstract:
This Essay examines the pressure placed upon choice of law doctrine by the newly enacted Class Action Fairness Act (CAFA). The core argument is that current choice of law doctrine, which assumes fidelity to the forum state choice of law rules as its basic premise, corresponds poorly to the national scope of economic activity in cases brought into federal court under CAFA. The Essay argues that there needs to be some conformity between the national scale of contemporary economic activity and the state-by-state presumption of inherited conflict of laws doctrine in order to provide some sensible legal oversight of national market conduct. Because of the multiplicity of potential forums for litigation of national market activity, the inherited doctrines of Klaxon Co. v. Stentor Electric Manufacturing Co. and Erie Railroad Co. v. Tompkins do little to provide settled expectations about the substantive laws governing broad-scale economic conduct.
The Essay offers an approach that should guide choice of law rules in the context of national market cases based on the need to facilitate common legal oversight of undifferentiated national market activity. The claim here is that conduct that arises from mass-produced goods entering the stream of commerce with no preset purchaser or destination should be treated as just that: goods in the national market. In the absence of national choice of law rules, this Essay suggests that courts should, as a default rule, apply the laws of the home state of the defendant to all standardized claims, regardless of the situs of the final injury. The upshot of this approach is to suggest a path for future development of national market cases that have been brought into the federal courts as a result of CAFA.
Article in the Wall Street Journal -- New Jersey Appeals Court Revives Proposed Vioxx Class-Action Suit, by Peter Loftus:
A New Jersey appeals court has given new life to a proposed class-action lawsuit that seeks to force Merck & Co. to pay for medical-surveillance tests for people who took Vioxx but haven't yet been diagnosed with health problems.
Merck withdrew the Vioxx painkiller from the market in September 2004 after a study showed it elevated the risk of heart attacks and other cariovascular events.
A state court judge had dismissed the proposed class action in 2005. But in a ruling posted online Tuesday, the Superior Court of New Jersey's appellate division reversed the lower-court ruling and sent the case back to the trial judge for further proceedings.
Article in the Wall Street Journal -- Pennsylvania Plaintiff Drops Vioxx Lawsuit Against Merck, by Sara Leitch:
Merck & Co. said a Pennsylvania woman dropped a lawsuit she had filed against the company, alleging that its Vioxx drug caused her husband's heart attack and death.
The Whitehouse Station, N.J., pharmaceutical company said the suit, filed by Angela McCool, would have been the first Vioxx case to go to trial in Philadelphia. The trial was scheduled to begin in Philadelphia State Court five weeks from now.
In its trial scorecard, the Wall Street Journal notes: "Merck has won four federal cases over Vioxx and lost one. In state courts, the company has won four and lost three. Among state cases, there was one order for a retrial (New Jersey) after jurors sided with Merck and two mistrials (California)."
Wednesday, January 24, 2007
Thomas Cohen of the U.S. Bureau of Justice Statistics has posted a working paper on SSRN entitled Do Federal and State Courts Differ in How They Handle Civil Trial Litigation: A Portrait of Civil Trials in State and Federal District Courts. Here's the abstract:
Using data from Civil Justice Survey of State Courts and the Administrative Office of the U.S. Courts, this article compares general civil (e.g., tort, contract, and real property) jury trials concluded in a sample of state courts and all federal district courts from 1992-2001. The study's key findings are: (1) that the types of civil cases coming before state and federal juries differ substantially; (2) that overall plaintiff win rates are nearly the same in both state and federal courts; (3) that the damages awarded to plaintiffs in federal courts are substantially higher compared to their state counterparts; (4) that although the vast majority of jury trials take place in the state courts, the proportion of all damage awards accounted for by the federal courts is fairly significant; (5) that state courts took substantially longer to dispose of civil jury trials than federal courts; and (6) that trend data show similar patterns of declining trials and stable plaintiff win rates from 1992-2001 in both court systems.
In a reprise of their clashes from the first Humeston trial in 2005, New Jersey Judge Carol Higbee scolded Merck's lead trial counsel Diane Sullivan for unprofessional behavior during opening statements in the consolidated Humeston and Hermans Vioxx trial that began this week in Atlantic City. Here's an excerpt from yesterday's report by David Voreacos of Bloomberg -- Merck Lawyer Admonished for Arguments in Vioxx Trial:
Merck & Co.'s lead attorney at a New Jersey trial over its Vioxx painkiller acted unethically and unprofessionally in court yesterday during her opening statements, the judge said.
Attorney Diane Sullivan repeatedly violated pre-trial orders on what statements were allowed during the first phase of a trial over whether Vioxx caused the heart attacks of two men, Superior Court Judge Carol Higbee said today outside the jury's presence. Sullivan's violations included talking about Merck's cancer research and noting the home states of the men, Higbee said.
"It is unprofessional, it is unethical, and it is contemptuous of this court,'' Higbee said in New Jersey state court in Atlantic City. "She deliberately violated my orders on repeated occasions. I am not going to deal with this kind of unprofessionalism. I am not going to let it taint this trial.''
Among other things, Judge Higbee admonished Sullivan for showing the jury a slide of plaintiff's lawyer Mark Lanier that differed from the photo the judge had approved, and for impermissibly suggesting to the jury that Merck might sell Vioxx again.
Tuesday, January 23, 2007
Article in today's Trenton Times -- Attorneys lay out cases to open double Vioxx trial -- reporting on the opening statements of Mark Lanier and Diane Sullivan in the consolidated New Jersey Vioxx trial of plaintiffs Humeston and Hermans.
Editorial in today's New York Times -- Nicotine Manipulation Confirmed:
Any doubts that the tobacco industry has surreptitiously raised the nicotine content of cigarettes should be laid to rest by a study from researchers at the Harvard School of Public Health. They confirmed last year’s discovery of the nicotine increase by the Massachusetts Department of Public Health and went on to identify how the tobacco companies designed their cigarettes to accomplish this.
These manipulations were discovered because Massachusetts requires manufacturers to use a more realistic test to measure how much nicotine is deliverable to typical smokers and requires companies to report design features of their cigarettes. When Harvard researchers reanalyzed the data they found that the nicotine yield per cigarette rose by an average of 11 percent between 1998 and 2005, a conclusion contested by the industry.
Harvard researchers concluded that the companies managed this by using tobacco containing a higher concentration of nicotine and perhaps also by slowing the rate at which cigarettes burned — thus increasing the number of puffs per cigarette. The companies presumably hoped that additional nicotine would hook more new customers and keep old ones from breaking the habit.
It stinks to be a minor defendant in a mass tort. Not that it's so great to be a major defendant, but at least that feels more straightforward. Last night, someone left this interesting comment to a post on the WSJ Law Blog:
As the owner of a small business, I can tell you first hand how unfair some state courts have been towards defendants of asbestos lawsuits.
Even though we never had anything to do with asbestos, a few years our firm got named in its first asbestos lawsuit. Before long, we had been sued in several different states, all in places where we had no employees. The typical lawsuit would name from 80 to 150 other defendant companies, but not include any details why we were responsible.
The most frustrating part has been the unwillingness of the courts to dismiss these unwarranted lawsuits in any reasonable time fashion. In the few cases where the court has heard our motion, the dismissal was near automatic. But in most cases, the courts have been unwilling to schedule a hearing.
If our example is typical, it would make a person wonder how they could ever get justice out of our courts.
From the perspective of someone who teaches litigation procedure, it's easy to get complacent about the assumptions built into much of modern U.S. civil procedure: notice pleading, liberal discovery, vigorous summary judgment. We look at pleadings that identify numerous potential defendants and feel that all's well that ends well. As long as there is a non-frivolous basis for the allegations, then we figure that the massive pleading is proper, and if the system functions properly, claims that ultimately prove non-meritorious will be weeded out on motions to dismiss, summary judgment, or at trial. I've taught this story to first-year civil procedure students many times. But it's useful to be reminded (and to remind our students) that for the litigants, the process can be painful and costly even when it functions largely according to plan.
Here's a litigant who's been named in complaints that "do not include any details why we were responsible" (notice pleading), who's been listed with "80 to 150 other defendant companies" (permissive party joinder), who's been sued in "several different states, all in places where we had no employees" (long-arm jurisdiction), who's found courts slow at scheduling hearings on pretrial motions (the nature of complex litigation, perhaps MDL or statewide coordinated proceedings), and who eventually achieved "near automatic" dismissals. My students could state why that's an example of the procedural system functioning properly, and why this litigant should be pleased to emerge victorious. But try explaining that to the small business owner who doesn't understand how he or she has gotten dragged into this morass, who's paying legal fees and losing sleep, and who just wants to get back to business.
Yesterday's WSJ Law Blog commented on last week's decision by Ohio Judge Harry Hanna to bar the Brayton Purcell law firm from appearing in his court, putting it in the broader context of a shift in favor of defendants in asbestos litigation:
In the latest setback for plaintiffs’ attorneys involved in large-scale asbestos litigation, an Ohio state court judge barred a California law firm from appearing in his court after finding that its lawyers had lied and obstructed the discovery process in a case involving an asbestos claim. ...
The ruling is one of a number in the past several years that have gone against asbestos plaintiffs, including several in Mississippi, for years regarded as a plaintiff-friendly state. Other states have erected legislative hurdles, making asbestos claims more difficult to win.
The case involved a mesothelioma wrongful death claim against Lorillard based on exposure to asbestos contained in Kent cigarette filters in the 1950s. The judge, while condemning the plaintiffs' lawyer, did not dismiss the case, finding that the decedent's family had done nothing wrong.
Monday, January 22, 2007
Brian Valery, an associate with Anderson Kill & Olick, represented Purdue Pharma for the past two years in an insurance coverage lawsuit related to the Oxycontin product liability litigation. But apparently, Valery wasn't a lawyer at all; he had duped his firm and others into believing that he had graduated law school and passed the bar. An article in today's New York Times -- Case of the Paralegal Who Played a Lawyer Raises Many Questions -- reports that the firm fired Valery in October when this came to light, that the firm is refunding fees its clients paid for Valery's work, and that Valery is scheduled to be arraigned Wednesday on criminal charges of impersonating a lawyer and perjury. Wow.
Sunday, January 21, 2007
Opening statements are set to begin tomorrow in a two-plaintiff New Jersey Vioxx trial. The consolidated trial has shrunk from "up to ten" plaintiffs (Oct. 11) to a suggested nine (Oct. 18) to a roster of eight (JLB Dec. 21) to four (Jan. 9) to the current two. What appeared a few months ago to be a significant development in Vioxx trial aggregation turns out to be just another two-plaintiff trial, as we've seen before with the Cona-McDarby trial in New Jersey and the Appell-Arrigale trial in California.
According to the Vioxx Trial Information sheet posted on the court's website, Judge Higbee apparently still plans on a bifurcated trial, with the first phase addressing liability for failure to warn and the second phase addressing individual causation and damages.
The two remaining cases are the retrial of the Humeston case, in which the court vacated the earlier judgment against Idaho plaintiff Frederick (Mike) Humeston after the appearance of a New England Journal of Medicine editorial challenging Merck's data, and a wrongful death case brought by the sister of Brian Hermans of Wisconsin. Point of Law has more.
A judge in Saskatchewan ruled that a Vioxx class action has sufficient merit to move forward, but needs more information on manageability before deciding whether to certify the class. Here's Friday's CP article as reported on canada.com -- Sask judge says case against Vioxx maker has merit, but wants more details:
An attempt to certify a class-action lawsuit against makers of the drug Vioxx has pushed forward in Saskatchewan.
Regina lawyer Tony Merchant says Court of Queen's Bench has ruled that a case against Merck Frosst has merit on the issues of negligence, deceit, battery and breaches of consumer protection legislation. ...
Merchant says the suit has not yet been certified as a class action because the judge wants a plan from the plaintiffs on how the case would be pursued.
But he calls the judge's comments important because an attempt to build a national class action in the United States failed.
Merck argues that people who claim they suffered injury from taking Vioxx must pursue individual lawsuits.
A judge declared a mistrial Thursday in a two-plaintiff consolidated Vioxx case in Los Angeles. The jury was unable to reach a decision on whether the plaintiffs' physicians would have recognized the drug's risks. The plaintiffs were Lawrence Appell of Arizona and Rudolph Arrigale of California. This report from Gabriel Haboudi of Jurist -- Jury deadlock in California Vioxx case leads to mistrial -- contains a brief summary plus links to further information.