April 3, 2009
5th Circuit Permits "Learned Intermediary" Defense in Zyprexa
Alison Frankel, of the American Lawyer, reports that the Fifth Circuit has given the green light to the "learned intermediary defense" in the Zyprexa product liability suits. The defense is based on the doctor (the learned intermediary) warning the patient of prescription drug side effects. Here's a link to the Fifth Circuit opinion and an excerpt of the article:
The facts in the Zyprexa case are heartbreaking. The victim, Philip Ebel, suffered from crushing headaches, for which he tried no fewer than 47 different treatments. His doctor in Texas, in consultation with a neurologist from a headache clinic in Michigan, finally prescribed Zyprexa -- an anti-psychotic prescribed off-label for headaches. Ebel took Zyprexa for four months before killing himself in 2002.
His doctor testified at a deposition that he was aware of Zyprexa's side effects, including an increased risk of suicide, and that he told Ebel about them. The 5th Circuit, in agreement with the lower court, ruled that because Ebel and his doctor were aware of the risks, Lilly's alleged failure to warn could not be "a producing cause" of Ebel's death.
Ebel's lawyer, Andy Vickery of Houston's Vickery, Waldner & Mallia, told the Litigation Daily that the 5th Circuit is behind the times when it comes to the learned intermediary defense. He said that courts in West Virginia, Oregon and New Mexico have all recently rejected it. "It's a travesty of justice when we cede the case to prescribing physicians who inevitably have an agenda of their own," said Vickery, who is also the plaintiffs lawyer in the Paxil case recently decided by the 5th Circuit. "Their rulings are a complete anachronism, a complete miscarriage of justice."
April 1, 2009
"A Practical Solution to the Reference Class Problem"
An article by Edward Cheng (Brooklyn Law) called "A Practical Solution to the Reference Class Problem" has just been posted on SSRN.
The "reference class problem" is a key issue in mass tort cases. For example, say a judge wants to hold a series of "bellwether" trials -- that is, a series of sample trials -- in order to determine what compensation is due to a group of plaintiffs. To do so, judge will have to decide what criteria to rely on in determining the sample. In other words, the judge must determine the appropriate reference class. The problem is that if the group is heterogeneous the judge will have to pick and choose among criteria, and it is hard to determine which criteria are relevant. This is the reference class problem and is a central barrier to certification of mass torts class actions because it renders them unmanageable. Cheng proposes a solution in his paper, and I haven't read it yet to be able to evaluate whether this solves the problem. It certainly presents food for thought and is an important issue!
March 31, 2009
Philip Morris Cert Dismissed as Improvidently Granted
As per Scotusblog:
The Court has released the opinion in Philip Morris USA, Inc. v. Williams (07-1216), on tobacco punitive damages. In a per curiam opinion, available here, the writ of certiorari is dismissed as improvidently granted.