February 24, 2007
Stent Risks May Result in Return to Heart Bypass Surgery
Article in the New York Times -- In the Stent Era, Heart Bypasses Get a New Look, by Barnaby J. Feder. Here's an excerpt:
After more than a decade-long decline, is heart bypass surgery poised for a comeback?
Some doctors say it may be time to give bypass operations a second look. They include even some cardiologists who specialize in the far more popular alternative — using stents to keep coronary arteries open.
No one is predicting a sudden surge back to bypass, which is still a far more invasive and initially riskier way to treat plaque-clogged heart arteries, a condition that afflicts millions of Americans.
But in light of new safety concerns over the long-term risks of stents, as well as accumulating data indicating that the sickest heart patients may live longer if they receive bypass surgery instead, some well-known stent specialists say the pendulum may have swung too far away from bypass surgery.
Cato on Williams and Class Actions
Passing of Class Action Expert David Berger
Article in the Chicago Tribune -- Class-Action Lawsuit Pioneer Berger Dies. Here's an excerpt:
David Berger, a class-action lawsuit pioneer who won major cases in the Three Mile Island nuclear accident as well as disputes with oil companies, has died. He was 94.
Berger died Thursday at a hospital in West Palm Beach, Fla., from complications of pneumonia, said one of his sons, Jonathan Berger.
In 1971, he filed a nationwide class-action suit against all major oil companies, demanding that service station operators get the right to sell any brand of gasoline. In a 1984 settlement, his 50,000 clients won that right along with $37 million in damages.
"He was a bright, bright lawyer," said Richard A. Sprague, a prominent Philadelphia criminal attorney who practiced with Berger in the 1970s. "The world didn't realize the potential of class-action litigation until Dave Berger came along."
He helped win $25 million for people who lived near the Three Mile Island nuclear power plant following the partial meltdown at the plant in March 1979. He also won $5 million for a public health fund to study the effects of low-level radiation exposure they had experienced.
February 23, 2007
Vioxx Forum Shopping
February 22, 2007
NYC Residents and 9/11 Illnesses
Article in the New York Times -- After 9/11, Ailing Residents Find a Place to Turn, by Anthony DePalma:
They say they suffer the same rasping cough, shortness of breath and gastrointestinal pains as thousands of rescue and recovery workers who fell ill from the dust and smoke at ground zero. They worry, as the others do, that the future may bring more health problems.
Yet residents, workers and students who returned to Lower Manhattan after the Sept. 11 attack say that their medical problems have largely been overlooked as officials focus increasing attention on the responders who were more exposed to the hazards.
Mr. Chaves, 53, developed asthma and severe acid reflux about a year and a half after Sept. 11, 2001. As his condition worsened, he tried to find out whether it was connected to the dust he had breathed in after the twin towers collapsed. Then last fall he heard that the city was giving millions of dollars to Bellevue Hospital Center to treat people excluded from other programs, like the one that monitors and treats recovery workers at Mount Sinai Medical Center.
Since that announcement in September, the number of people being treated at the W.T.C. Environmental Health Center at Bellevue Hospital has doubled to more than 900. Several hundred more people are on a waiting list, including many low-income residents of Chinatown and the Lower East Side, and immigrant workers without health insurance. And after Mayor Michael R. Bloomberg last week encouraged residents who might have been exposed to the dust to be checked by the clinic’s specialists, the number of patients is expected to rise substantially.
February 21, 2007
Wyeth Loses Prempro Trial
A jury found that Prempro caused the plaintiff's breast cancer and awarded Jennie Nelson and her husband $3 million, in a retrial of a Philadelphia HRT case. Here's an excerpt from today's Philadelphia Inquirer story:
A Philadelphia jury blasted the drugmaker Wyeth yesterday for failing to warn a patient about breast-cancer risks of its hormone drug Prempro and awarded the Ohio woman and her husband $3 million in damages.
It was the second - and biggest - loss in litigation over Prempro. Wyeth has headquarters in Madison, N.J., with pharmaceutical operations in Collegeville. It has won two Prempro cases, has settled at least one, and has three more trials scheduled for this year.
Wyeth indicated it would appeal yesterday's verdict.
"We respectfully disagree that there is any scientific basis to support the jury's finding of a causal link between Wyeth's hormone therapies and the plaintiff's breast cancer," Barbara R. Binis, a Wyeth defense attorney from the Philadelphia office of Reed Smith L.L.P., said in a statement.
The company has said it faces about 5,000 cases over its hormone-replacement drugs, including Prempro and Premarin.
But plaintiffs' attorneys say cases involving at least 10,000 people have been filed nationwide in federal and state courts, including roughly 1,800 people in Philadelphia's Court of Common Pleas. Almost all involve breast cancer.
A Reuters story -- Jury awards plaintiff $3 million in Wyeth Prempro case -- notes that this was a retrial:
A previous Philadelphia jury also found in favor of the plaintiff, Jennie Nelson, in October. But the judge threw out that verdict and declared a mistrial, leading to the retrial that concluded on Tuesday.
The original jury at the Philadelphia Court of Common Pleas had awarded Nelson and her husband $1.5 million in compensatory damages. This time, Nelson was awarded $2.4 million and her husband $600,000.
The reason for the mistrial declaration was not disclosed at the time, with Nelson's attorney saying only that it was due to extraneous circumstances. There has been speculation since that the verdict may have been overturned as a result of juror misconduct.
The first Nelson trial (a phased trial using a reverse bifurcation structure) and the court's mistrial ruling had attracted attention from those looking for early signs of where the Prempro litigation might be heading.
Supreme Court Reverses in Philip Morris Punitive Damages Case
Yesterday, the Supreme Court struck down the $79.5 million punitive damages award in the Oregon tobacco wrongful death case of Mayola Williams v. Philip Morris. Here's the story in the Chicago Tribune about the 5-4 decision. The Supreme Court's opinion did not decide whether the amount of punitive damages was unconstitutionally excessive as a multiple of compensatory damages. In other words, we still don't know just how strictly the Court will apply the single-digit multiple standard of State Farm v. Campbell -- an issue of great practical significance in punitive damages cases. But in the Williams case, the Supreme Court did address the punitive damages issue most applicable to mass torts, ruling that a jury may punish a defendant only for harm to the actual litigant, not for harm to others.
Today's New York Times ran an editorial criticizing the ruling as "a win for corporate wrongdoers." The Times may well be correct that this Supreme Court "is more concerned about — and more willing to protect — the powerful than the powerless." The editorial contrasts the Court's narrow view of 8th Amendment protection for criminal defendants with its use of the due process clause to protect corporate defendants from punitive damages. But on the core issue decided in the Williams case, isn't the Times missing the point?
[T]he court ruled that the award was improper because it punished Philip Morris for harm done to people who were not part of the lawsuit. There is nothing unusual, or wrong, about courts considering the broader impact of a wrongdoer’s misdeeds. As Justice John Paul Stevens noted in dissent, “A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim.” The fact that Philip Morris hurt so many other smokers along with Jesse Williams is surely relevant to its punishment.
The editorial makes it seem like the question is how much a defendant should be punished for its wrongdoing. But this was not a criminal case or a government proceeding for a civil fine. Nor was it a class action or other multi-plaintiff litigation. It was a civil lawsuit brought by an individual plaintiff. The question is whether an individual litigant is entitled to collect punitive damages for harm to others. Ultimately, that's a question of aggregation: Is it permissible to aggregate the amount of punitive damages on the defendant side, without aggregating the distribution of punitive damages on the plaintiff side? If the goal is to punish a defendant for its harm to multiple victims -- and if we're looking to private civil litigation rather than to government proceedings -- doesn't it make more sense to accomplish this by collective litigation in which the claims of multiple victims can be resolved, rather than by permitting an individual to receive collective punitive damages?
February 19, 2007
Chicken Recall for Bacterial Contamination
Article in the Los Angeles Times -- Bacteria prompt chicken recall, by the Times Wire Reports:
Carolina Culinary Food is recalling packages of Oscar Mayer ready-to-eat chicken breast strips with rib meat because they may be contaminated, the U.S. Department of Agriculture's Food Safety and Inspection Service said.
Officials said Georgia Department of Agriculture food scientists found Listeria monocytogenes in a sample. That type of contamination can cause listeriosis, which is potentially fatal.
February 18, 2007
Salmonella Outbreak in Peanut Butter
Article in the Wall Street Journal -- Salmonella Outbreak Traced To Peter Pan Peanut Butter, by the Associated Press:
ConAgra Foods Inc. is recalling some jars of Peter Pan and Great Value peanut butter after the products were linked to a recent salmonella outbreak that has sickened nearly 300 people.
Consumers should throw away all Peter Pan and Great Value peanut butter jars that have a product code beginning with the number "2111" imprinted on the lid, ConAgra said. Officials at the Omaha, Neb., company haven't said how much peanut butter will be affected by the recall, but said consumers can return the product lids for a full refund.
Officials with the Centers for Disease Control and Prevention believe this to be the first salmonella outbreak associated with peanut butter in the U.S.
Since August, the outbreak has sickened 288 people in 39 states, federal health officials said Wednesday. About 20% of them have been hospitalized but none has died, said Mike Lynch, a CDC epidemiologist. About 85% of the infected people said they ate peanut butter, CDC officials said. The largest number of cases were reported in New York, Pennsylvania, Virginia, Tennessee and Missouri.
Wyeth Wins Prempro Trial in Federal Court in Arkansas
Article in the Wall Street Journal -- Jury Finds for Wyeth In Hormone-Drug Trial, by the Associated Press:
A federal jury ruled for Wyeth Pharmaceuticals on Thursday in the latest lawsuit claiming that the company's hormone-replacement drugs cause breast cancer.
After deliberating for more than a day, a jury in Little Rock sided with New Jersey-based Wyeth in a case filed by Helene Rush of Little Rock.
In her lawsuit, Ms. Rush accused the drug maker of negligence in its hormone replacement therapy. More than 5,000 similar suits have been filed across the country.
Ms. Rush, 72 years old, was diagnosed with breast cancer in 1999. Her attorneys say she took Wyeth's estrogen-progestin hormone therapy for nearly a decade.
Lawyers for Wyeth said Ms. Rush likely would have developed breast cancer regardless of whether she took Premarin and Prempro because of genetic and health factors, such as weight gain and a history of smoking.
FDA Warning of Wrong Drugs Sold via Internet
Article in the Wall Street Journal -- FDA Warns of Wrong Drugs Being Sold Over the Internet, from the Associated Press:
Consumers who thought they were purchasing sleep aids, antidepressants and other drugs over the Internet instead were shipped a powerful antipsychotic, sending some unwitting victims to the emergency room, federal health officials warned Friday.
The Food and Drug Administration said a number of consumers took the schizophrenia drug, haloperidol, after being shipped what they thought were a variety of different pills, including Ambien, a sleep aid, and the anti-anxiety medications Xanax and Ativan. Others thought they were getting the antidepressant Lexapro.