Friday, January 25, 2008
Adam Liptak of the NY Times published a piece on January 22 basically arguing that the duty of loyalty is dead and the Vioxx settlement dealt the final blow. You can find the piece here. He quotes Richard Nagareda arguing that “Speaking of individualized notions of lawyer loyalty is sort of like the mindset of the French military in 1940. The French generals hunkered down in a series of reinforced bunkers along the German border called the Maginot Line, meanwhile, the new world of warfare literally blitzed right past them." The analogy is a particularly good use of the war metaphor in litigation.
Liptak's view is that any change to the duty should come from the legislature or state bar, not individual lawyers and legal developments on the ground. (This type of thing is what the ALI is trying to do with the Project on Aggregate Litigation.) But people that do not like what the existence of inventory cases does to the lawyer-client relationship shouldn't like it any better when the outcome is legislated. See Howie Erichson's post on the aggregate settlement rule here, Nancy Moore's article here for some criticisms.
What appears as a new development is old wine in new bottles. See, for example, Judge Weinstein's classic (and excellent) article Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. Rev. 469 (1994) (which Howard Erichson blogged about here). Samuel Issacharoff and John Fabian Witt have shown this pretty convincingly in The Inevitability of Aggregate Settlement which was published by the Vanderbilt Law Review and can be found on SSRN. That the problem is old doesn't mean that it isn't real, but it does show that its not a problem that can be resolved by process (it doesn't matter if the rule comes from the ALI, the bar, Congress, or the norms of the profession as they develop over time) but a structural problem of the mismatch between mass industrial harms and the tort system.
Article on cnn.com -- FDA scrutinizes Vytorin. Here's an excerpt:
Government regulators said Friday they are analyzing recent study results regarding cholesterol drug Vytorin, but that it's too early to tell whether it will take any regulatory action.
The Food and Drug Administration is focusing on study results from drugmakers Merck (MRK, Fortune 500). and Schering-Plough (SGP, Fortune 500), who unveiled their study on Jan. 14. The study failed to prove that Vytorin, a combination drug containing Schering's Zetia and Merck's generic drug Zocor, is better than Zocor alone in reducing plaque in neck arteries.
But Vytorin is still seen as effective in lowering harmful types of cholesterol, which is the drug's FDA-approved purpose.
Vytorin is a $4 billion-a-year treatment, with sales split between Schering and Merck. Vytorin is a name-brand drug, and triple the cost of generic Zocor.
Article in the Wall Street Journal -- Merck, Schering-Plough Defend Efforts for Vytorin, Zetia, by the Associated Press. Here's an excerpt:
Merck & Co. and Schering-Plough Corp. defended their actions Friday involving a recently released study that raised questions about the effectiveness of cholesterol drugs Vytorin and Zetia.
The Food and Drug Adminstration, meanwhile, said it will review the partially completed study once it has been finished.
The companies are being sued in several states over allegations they misled consumers into thinking the drugs were more effective than generics. In a statement Friday, the companies said they acted "with integrity and good faith."
Last week, Merck and Schering-Plough released partial data from the controversial Enhance study, which ended in April 2006. The study results revealed cholesterol drug Vytorin is no more effective than a high dose of one of its components, Zocor, which is available generically at a third of the cost. Vytorin, developed by Merck and Schering-Plough, is a combination of Schering-Plough's Zetia and Merck's Zocor, which lost patent protection in June 2006. Zocor had been Merck's top-selling drug, with annual sales of about $5 billion, roughly the amount Vytorin and Zetia now bring in together.
Wednesday, January 23, 2008
Article on cnn.com -- 'Thomas' toymakers to pay $30M settlement. Here's an excerpt:
The maker of "Thomas & Friends Wooden Railway" toys has agreed to pay $30 million to settle a nationwide class-action lawsuit by thousands of families who purchased lead-tainted products, a plaintiffs' attorney said Wednesday.
Under the deal, Oak Brook-based RC2 Brands will offer cash refunds or replacement toys, plus what the company calls a bonus toy; it also promises to implement new quality controls, said Jay Edelson, a plaintiffs' attorney in the case.
"We believe this really is the first step toward cleaning up the problem of lead paint in toys," the Chicago attorney said. "It will put a lot of pressure on other companies to step up and act morally. We hope this becomes a problem of the past."
Sunday, January 20, 2008
Given the recent cert grants on preemption, this might be a good time to revisit Catherine Sharkey (NYU)'s piece entitled "The Fraud Caveat to Preemption" which I mentioned back in October. Sharkey has a new piece on preemption that is also of interest to those following this issue: "Products Liability: An Institutional Approach" posted on SSRN.
Her take on the cases is that "At first glance, the United States Supreme Court's preemption jurisprudence in the realm of products liability cases is a nearly incoherent muddle. But a closer view actually reveals an unmistakable pattern: in every case, the Court, with only one exception, has adopted the position of the relevant federal agency as to whether the plaintiff's state law claims should be preempted by that agency's regulations. The Court is hardly forthright about its dependence upon agencies." She argues that this is right: "courts should look to agencies to supply the data and analysis necessary to determine if preemption is appropriate; i.e., to determine when a uniform, national regulatory policy with respect to a certain product makes the most sense or, instead, whether such regulation is better left to the states, in which case a plaintiff's common law claim should be permitted to proceed." She includes the caveat that agencies are subject to incompetence and capture, and proposes some additional safeguards to deal with that problem.