March 12, 2008
W.R. Grace Foots the Bill for Montana Asbestos Clean-up
Susan Gallagher of the Associated Press reports that W.R. Grace & Co. agreed to pay $250 million toward asbestos clean-up in Libby, Montana. The full story is available online; here’s a brief excerpt:
More than 215 asbestos-related deaths in Libby have been confirmed and a clinic in the community, the Center for Asbestos-Related Disease, is following about 2,000 asbestos cases, said Jon Heberling, a Kalispell lawyer with clients pursuing legal action for asbestos exposure.
"Any judgment against Grace is a good one," Gayla Benefield of Libby said Tuesday. "This is a step forward; $250 million is nothing to sneeze at considering that in 1999 they (Grace) were saying, 'We didn't cause the problem. We didn't do anything.'"
Benefield has said she suffers health effects from asbestos exposure and lost both parents to asbestos-related diseases.
The EPA's Peronard said the remaining cleanup work in Libby is likely to take three to five years.
In 2001, the government filed a lawsuit to recover costs and in 2003, the EPA won a $54 million judgment for cleanup costs incurred through Dec. 31, 2001. However, the money went unpaid during Grace's bankruptcy protection. The settlement announced Tuesday includes that 2003 judgment, the Department of Justice said.
Besides removing soil around homes and businesses, cleanup has included removing building insulation and debris containing asbestos. Peronard said cleanups have been completed at 954 properties, and 450 remain on a cleanup list. Still to be decided: what to do about some 700 properties that are in the Libby area and are contaminated but do not meet removal criteria.
FDA's Controversial Role
Today’s Wall Street Journal has another piece on potential further restrictions on anemia drugs sold by Amgen, Inc. and Johnson & Johnson (see Byron’s post for the earlier article). This piece highlights the FDA’s controversial nature. Here’s an excerpt:
Last fall, dozens of protestors gathered outside the FDA's headquarters to complain about the agency's handling of cancer medicines. Two prostate-cancer patients blamed the agency for rejecting a treatment they said helped keep them alive. Later, the group broke into a chant: "Pazdur Must Go! Pazdur Must Go!"
On the other side, cancer researchers and other patient groups say Dr. Pazdur approves drugs that work and provides a bulwark against those that are unproven and potentially dangerous.
Dr. Pazdur's role crystallizes broader questions about the FDA itself. Amid rapid changes in medical science and soaring health-care costs, Dr. Pazdur and the agency face conflicting pressures. Some want the FDA to make it easier for cancer patients and doctors to get access to drugs, by relaxing traditional standards for measuring their benefits. Others want the FDA to set a high bar to protect Americans from drugs with only limited effectiveness.
Around 1.4 million cases of cancer are expected to be diagnosed in 2008, and 565,650 Americans are expected to die of cancer this year. Still, better detection and better treatments have steadily improved the odds for many patients. For people diagnosed between 1996 and 2003, the five-year survival rate was 66%, up from 50% for those diagnosed between 1975 and 1977.
Zyprexa Hearings Broadcasted
A short order by Judge Weinstein in the Zyprexa MDL on March 11, 2008, permitted cameras and recording equipment during the upcoming March 20 hearing. Here’s a brief excerpt of Judge Weinstein’s order:
Video broadcasts assist in opening the courts to the public. Since tens of thousands of individuals, organizations and governmental entities all over the United States are parties to, or affected by, the instant litigation, approval of the application is in the public interest. No reason has been suggested to depart from the policy that, in general, the public should be permitted and encouraged to observe the operation of its courts in the most convenient manner possible, so long as there is no interference with the due process, the dignity of litigants, jurors and witnesses, or with other appropriate aspects of the administration of justice.
3/11/2008 N.Y.L.J. 32, (col. 3) (MDL Case No. 04-MD-1596).
As I’ve noted in previous articles (see here and here), transparency in matters affecting the public (such as large scale pharmaceutical cases) is vital for deterrence, public education, marketplace and social accountability, and judicial legitimacy. This transparency traditionally comes through published written opinions, but it’s certainly interesting to observe the rise of these new developments. It’s not clear from the text of the order which hearing will be broadcasted. There are a few significant hearings scheduled in March. Notably, there’s a hearing on motions to dismiss and motions for summary judgment in the securities lawsuits, shareholder derivative lawsuit, and a class certification motion on the third-party payors lawsuit scheduled for March 27 and March 28 (info available at 2008 WL 619172 (E.D.N.Y.)).
Conference: Justice and the Role of Class Actions
Cardozo Law School in New York is hosting a conference on Friday, March 28 entitled "Justice and the Role of Class Actions." The organizers describe the conference as follows:
For too long, coverage of class action litigation has understated or ignored completely the critical role that class actions have played in protecting consumer safety, advancing civil rights, protecting the integrity of the market, and distributing justice. The goal of this conference is to present a series of panels focusing on the historic value of class actions, their contemporary application, as well as the threats and opportunities facing the class action system today and in the future. The conference, cosponsored with the American Constitution Society for Law and Policy and Public Justice, will bring together a diverse group of scholars, practitioners, and law students to engage in a day-long, interactive set of conversations about class actions and the issues that swirl around this controversial and rapidly changing legal arena.
The speakers list includes some of the most prominent names in class action litigation and scholarship (listed here in order of appearance): Kenneth Feinberg, Elizabeth Cabraser, Sean Coffey, Geoffrey Miller, Richard Nagareda, John Beisner, Paul Bland, Myriam Gilles, Michael Hausfeld, Samuel Issacharoff, Arthur Bryant, Deborah Hensler, Bill Lann Lee, Catherine Lhamon, Victor Schwartz.
The coverage of the conference is very general (panels are on the history of class actions, challenges facing class actions and globalization of class actions). There is no specific mass tort angle, at least of the type we often write about on this blog, because class actions have largely been abandoned as a vehicle for resolving mass torts. Constitutional torts, such as strip search class actions and Title VII class actions, remain viable and will likely be discussed at the conference.
March 9, 2008
FDA Adds Additional Black-Box Warnings to Anemia Drugs
Article in the Wall Street Journal -- FDA Adds More Black-Box Warnings To Anemia Drugs From Amgen, J&J, by the Associated Press. Here's an excerpt:
Drug maker Amgen Inc. says regulators have added new warnings about risks of death and tumor growth to its blockbuster anemia drugs.
The new warnings approved Friday by the Food and Drug Administration warn that the company's drugs increased death and accelerated tumor growth in patients with several types of cancer, including breast and cervical. Prior labeling added to the drugs in November warned of similar risks in other types of cancers.
The warnings apply to Thousand Oaks, Calif.-based Amgen's Aranesp and Epogen, as well as Procit, sold by New Brunswick, N.J-based Johnson & Johnson. The drugs treat the blood-disorder anemia in patients with kidney failure or who are undergoing chemotherapy.
Labeling approved by FDA said risks occurred when doctors treated patients with elevated levels of the drugs, which stimulate red blood cell levels.
Parties in Pet Food Litigation Near Settlement
New Jersey Law Journal reports that parties are close to settling the multi-district litigation against Menu Foods for injuries resulting from its contaminated pet food. Here’s an excerpt:
On Feb. 19, the U.S. Judicial Panel on Multidistrict Litigation consolidated suits from around the nation, finding they involve questions of fact common to 31 cases already assigned to U.S. District Judge Noel Hillman, who sits in Camden.
Menu Foods' lawyer, Amy Schulman of DLA Piper in New York City, wrote to Hillman on Feb. 28, saying the parties have made substantial progress during mediation. Hillman gave them until March 19 to report back.
Michael Ferrara Jr. of Cherry Hill, N.J.'s Ferrara Law Firm, who along with co-counsel in Chicago and San Francisco represent a dozen plaintiffs, agrees that his cases are likely to be resolved soon.
Suits were filed soon after Menu Foods Inc., of Ontario, Canada, recalled 60 million containers of 90 brands of pet food early last year. Pet owners alleged that by February 2007, the company was receiving complaints of pet illness and death due to contaminated food. The products contained whole-wheat flour, imported from China, that was later found to be tainted with melamine, a toxin.
After testing its products on 50 animals, seven of which died, Menu Foods issued a recall on March 16, 2007. But more animals were harmed in the interim, the suits charge: As of April 2007, a total of 3,730 pets died of kidney failure and another 11,700 got sick.
About 120 suits were filed in Arkansas, California, Connecticut, Florida, Indiana, Illinois, Minnesota, New Jersey, New York, New Mexico, North Carolina, Ohio, Ontario, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Wisconsin and Washington.
The plaintiffs claim unfair and deceptive trade practices; negligence in failing to provide adequate quality control; unjust enrichment and breach of implied and express warranties. Some claim emotional trauma was caused by the death or illness of pets.
Here’s a link to Milberg Weiss’s complaints and the FDA page on the pet food recalls. These complaints do not contain claims for emotional distress, for which recovery varies significantly from state to state.
Government Report Says U.S. Soldiers in Iraq Sickened at Bases With Questionable Water Supplied By Contractor
Article on cnn.com -- Troops sickened at Iraq bases using KBR water, by the Associated Press. The story evokes memories of the Agent Orange class action litigation involving Vietnam Veterans suing for illnesses allegedly caused by exposure to the Agent Orange defoliant sprayed in Vietnam. As with Agent Orange, which settled, any lawsuits by soldiers from Iraq would likely face a vigorous military-contractor defense. Here's an excerpt from the article:
Dozens of U.S. troops in Iraq fell sick at bases using "unmonitored and potentially unsafe" water supplied by the military and a contractor once owned by Vice President Dick Cheney's former company, the Pentagon's internal watchdog says.
A report obtained by The Associated Press said soldiers experienced skin abscesses, cellulitis, skin infections, diarrhea and other illnesses after using discolored, smelly water for personal hygiene and laundry at five U.S. military sites in Iraq.
The Defense Department's inspector general's report, which could be released as early as Monday, found water quality problems between March 2004 and February 2006 at three sites run by contractor KBR Inc., and between January 2004 and December 2006 at two military-operated locations.
It was impossible to link the dirty water definitively to all the illnesses, according to the report. But it said KBR's water quality "was not maintained in accordance with field water sanitary standards" and the military-run sites "were not performing all required quality control tests."