Mass Tort Litigation Blog

Federal Government to Require Pharmaceutical Company Reporting of Payments to Doctors

The New York Times reports that under new regulations to be announced by the Obama administration, pharmaceutical companies will have to report payments to non-employee doctors for "research, consulting, speaking, travel and entertainment."  The reporting requirements are to cover any company that has a product covered by Medicare or Medicaid, and the reporting information is to be subsequently posted by the government on a publicly accessible website.

BGS 

Size of BP Leak Larger Than BP Earlier Estimated

BP had been saying 5,000 barrels a day had been leaking into the Gulf, but the clean-up siphon is itself now pulling up 5,000 barrels a day and the siphon is only reaching a portion of the escaping oil.  For more, see the CNN story, BP: Oil gusher bigger than we estimated.

And here's some recently released video of the BP rig on fire after the initial explosion.

BGS

Klein on "Science Causation and Toxic Torts"

A provocative post from Andrew Klein as part of Torts Prof Blog's ongoing Monday guest blogger series. Check it out here.

ADL

Reynolds' Move Into Smokeless Products

Thorough article in the Wall Street Journal -- Smokeless Products Are Tough Test for Reynolds, by David Kesmodel.

BGS

Albany Law Journal Symposium Issue on Off-Label Drug Prescription

The Albany Law Journal of Science & Technology has published a symposium issue on Regulating the Cure: Topics Arising Out of the Prescription of Drugs Off-Label.  My article, Promotion of Off-Label Drug Use: In Favor of a Regulatory Retreat, 19 Alb. L.J. Sci & Tec. 609 (2009), is included.

BGS

Walter Olson Attempts to Defuse the Toyota Panic

His article, Exorcising Toyota’s Demons, was published today in the National Review online.

BGS

Increase in Black Lung Disease

Today's Wall Street Journal has an article on increases in Black Lung Disease, Black Lung on Rise in Mines, Reversing Trend, by Kris Maher.  Black Lung claims are covered by a federal Black Lung program, which provides an administrative mechanism for compensation, funded by a tax on coal.  What's interesting is that the rise in claims occurs despite improving technology, which would be expected to decrease health problems.  Thus, the article explores possible causes, such as longer workshifts or more productive machinery that might produce more dust.  If machinery is the culprit, it's possible that individual mining companies might have had an incentive to prioritize powerful machinery over safe machinery, if the costs of worker illness are spread throughout the entire industry via a coal tax.  (Remedy: return to a system of individual tort claims against mining companies, or at least some administrative/tax penalty for companies with higher Black Lung claims.) 

But one other possibility for the rise in Black Lung needs to at least be considered and explored: fraud. Recent events with silicosis are similar: historically falling disease rates in tandem with improving technology, followed by an odd spike in supposed disease incidence.  In a now-storied Daubert inquiry, Judge Janis Jack, who herself had a background in nursing, inquired into the basis of expert testimony and diagnosis and uncovered biased and unreliable procedures that may amount to fraud; her discoveries effectively ended what appeared to be a new mass tort.  See NPR, Silicosis Ruling Could Revamp Legal Landscape.  Concerns of fraud and abuse should be even greater in the context of an administrative program that lacks the adversarial scrutiny of formal litigation.  And the Black Lung program has historically been plagued by such problems.  A 1989 article in the West Virginia Law Review, authored by a former Department of Labor counsel and a private practitioner, concluded,

[T]he program has been plagued by fraud and abuse. There have been investigations, and indictments, and convictions of agency personnel, claimant's representatives, and medical care providers.  The program has been infected by an undercurrent of “petty corruption.”  If anything, the program is the most often cited example of why Congress should leave occupational disease compensation to the individual states.

Allen R. Prunty & Mark E. Solomons, The Federal Black Lung Program: Its Evolution and Current Issues, 91 W. Va. L. Rev. 665, 734 (1989). 

BGS

WLF Web Seminar on Off-Label Communication

On October 14, 2009, the Washington Legal Foundation hosted a web seminar, Communicating on Off-Label Treatments: Navigating the Treacherous Path Paved by Civil and Criminal Law Enforcement, with speakers Robert Salerno and Adam Hoffinger of Morrison & Foerster.  Streaming video of the event is available online.

BGS

Pro-Defense Daubert Ruling in Bausch & Lomb MoistureLoc MDL

Pertaining to the more speculative cases alleging non-fusarium infections.  Drug & Device Law analyzes the opinion.

BGS 

Viagra MDL Judge Rejects Plaintiff Expert Testimony Under Daubert

A detailed analysis (with rejoicing) from Drug and Device Law.  The opinion details deficiencies in the plaintiff expert's previously peer-reviewed and published study.  

For a past article of mine that set forth problems in the main study underlying the opinions of plaintiffs' experts in the phenylpropanolamine (PPA) litigation, see here. 

BGS

Climate Change Litigation and Legislation

Sean Wajert (Dechert) from Mass Tort Defense offers an update.

BGS

Plaintiffs' Expert Testimony on General Causation Excluded in Non-Fusarium Eye-Infection Contact-Lens Case Against Bausch & Lomb

Article in AmLaw Litigation Daily -- Shook Hardy Wins Junk Science Dismissal for Bausch & Lomb, by Ben Hallman.  Here's an excerpt:

In 2006 Bausch & Lomb yanked its ReNu Moisture Lock contact lens solution from store shelves following a Centers for Disease Control study that showed an association between the product and eye infections. The problem related to a specific kind of fungus called fusarium. Left untreated, a fusarium infection causes all sorts of nasty eye problems, including cornea scarring, which requires surgery. Over the last few years, Bausch & Lomb has settled about 400 fusarium claims. The company also faced claims from contact wearers who have gotten non-fusarium infections. On Wednesday, New York state court judge Shirely Kornreich threw out the case, ruling that plaintiffs had failed to present any compelling evidence that linked eye infections of other varieties to the Bausch & Lomb product.

And here's a link to the opinion by Justice Kornreich of the New York Supreme Court, New York County.

BGS

U.S. Homeowner Health Problems from Chinese Drywall

Article in the Wall Street Journal -- Homeowner Problems With Chinese-Made Drywall Spread, by Michael Corkery.  Here's an excerpt:

Complaints about foul-smelling Chinese-made drywall that first emerged in a few dozen homes in Florida in January have spread to hundreds of homes in several states, fueling controversy over the Chinese import.

Fearing that the construction material is making them sick, homeowners are moving out of their houses, filing lawsuits and demanding help from lawmakers. Two U.S. senators have proposed a temporary ban on certain Chinese drywall imports. A Chinese government agency is also investigating, according to a Chinese news report.

The actual health effects of the drywall, which is commonly used to construct interior walls, are still unknown. While homeowners attribute bloody noses, sinus problems and headaches to the drywall, the Florida health department said there is no evidence that gases being emitted from the construction material pose a serious health risk.

BGS