Saturday, November 28, 2009
Last Monday Judge John Keenan of the Southern District of New York dismissed the second of three bellwether cases set for trial on Merck's osteoporosis drug, Fosamax. As David Bario of The American Lawyer reports, "the plaintiff in the second test case, a 74-year-old Mississippian named Bessie Flemings, had failed to present admissible evidence of specific causation tying her jaw problems to Fosamax." Judge Keenan found that one of Fleming's medical experts had no opinion and that the other did not qualify as an expert. Consequently, Fleming couldn't establish causation under Mississippi's Product Liability Act.
The first bellwether trial ended in a mistrial after a juror complained about physical threats from other jurors. That case is set for a new trial in the spring and the third test case is set for trial in April of 2010. Judge Keenan still has roughly 900 Fosamax cases consolidated before him through multi-district litigation.
Friday, November 27, 2009
Earlier this week, a Florida jury returned a $300 million verdict in Lucinda Naugle's individual lawsuit against Philip Morris. The jury awarded $56 million in compensatory damages plus $244 million in punitive damages. Here's a WSJ Health Blog post, as well as an editorial in today's NY Times urging that "There should be more lawsuits seeking not only monetary damages, but changes in how the tobacco industry markets its products."
The Naugle action is one of over 8000 post-Engle lawsuits in Florida. Engle was the massive statewide Florida class action against the tobacco industry that resulted in a 12-figure punitive damages verdict against the cigarette companies. When the Florida Supreme Court decertified the class in 2006, the classwide punitive damages verdict was lost, but the Florida Supreme Court held that the classwide factual findings would be given preclusive effect in subsequent individual trials. Thus, when Engle class members (Florida smokers) go to trial on cigarette claims, certain facts are already established without the need for new proof: that nicotine is addictive, that cigarettes cause certain diseases, that the tobacco companies knew of certain dangers but failed to disclose that information, and so on. The post-Engle individual lawsuits began to reach trial this year, and so far they have mostly resulted in big wins for plaintiffs.
As I commented on this blog nine months ago, if the post-Engle plaintiffs continue to win at this rate, it may turn out that the Florida Supreme Court's decertification of the class action -- which at the time seemed like an important victory for the tobacco industry -- was an even greater victory for tobacco plaintiffs.
Tuesday, November 24, 2009
In the hormone replacement therapy (HRT) litigation, plaintiffs won substantial verdicts in two trials in state court in Pennsylvania. In the trial that concluded yesterday, the jury imposed punitive damages of $28 million on top of the $6.3 million in compensatory damages it had already awarded to plaintiff Donna Kendall. In the other case, the court yesterday unsealed a punitive damages verdict of $75 million for plaintiff Connie Barton, who had been awarded $3.7 million in compensatory damages. When the Barton punitive verdict was reached in late October, the court took the unusual step of sealing the amount of punitives (see here and here) while the Kendall trial was pending. Here's an excerpt from today's Philadelphia Inquirer article:
Pfizer Inc. has been hit with more than $100 million in two punitive-damage awards - one decided and the other unsealed yesterday - from Philadelphia juries.
Both cases involve Prempro, a hormone-replacement drug made by Wyeth, which recently was acquired by Pfizer. Plaintiffs said the drug was linked to their breast cancer.
The total includes $28 million awarded yesterday to Donna Kendall of Decatur, Ill.
In the second case, Philadelphia Common Pleas Court Judge Sandra Moss yesterday unsealed a verdict reached earlier this year that awarded $75 million in punitive damages to another Illinois resident, Connie Barton, over her Prempro-linked breast cancer. ...
About 1,500 of 10,000 similar cases are pending in Philadelphia, a common jurisdiction for large liability cases, attorneys say.
With the momentum in plaintiffs' favor and 10,000 cases remaining, one has to wonder whether Pfizer will seek some sort of global settlement. We can't help comparing Pfizer's position to the position of Merck before it settled the Vioxx litigation. After a similar but slightly higher number of trials, Merck abandoned its try-every-case-individually strategy and negotiated a mass aggregate settlement. Merck, however, settled when it had a favorable trial record; so far the defendants have not prevailed in most of the HRT trials.