Articles Posted in Products Liability

The more information trickles out about Merck’s knowledge of the risks of Vioxx, the worse the company looks. NPR has a great piece about Merck’s efforts to publish articles that downplayed the risk of heart attack and stroke due to Vioxx use. Listen to the story here (follow the link, and click on “Listen” underneath the headline).

Here is an interesting article about the first Vioxx case that has made it to trial.

Look at the article’s description of the defense team:

“Judging from its lawyers involved in Ernst, Merck should have its own gallery of litigation support. Leading the case as co-chairs are Fulbright & Jaworski partner Gerry Lowry of Houston and partner David Kiernan of Washington, D.C.’s Williams & Connolly. They will be receiving assists from lawyers in Fulbright’s Houston and Dallas offices. Josephson and two other Baker Botts attorneys are also listed as counsel for Merck on court documents. And overseeing all Vioxx litigation on a national level is New York-based Hughes Hubbard & Reed.”

Merck tried – and failed – to postpone the first Vioxx trial. The case will be tried starting next week in rural Texas courtroom.

Merck said they sought a continuance because of pre-trial publicity. The judge said he would not grant a continuance before looking responses to the jury questionaires.

Merck had earlier agreed in writing that it would not seek a continuance except for illness of one of its lead counsel. Oh well.

Thanks to Robert Ambrogi for telling us about an interesting study from the Rand Corporation.

Rand studied asbestos payments, and found that 42 cents of every dollar went to victims, 27 cents went to their lawyers, and 31 cents went to defense costs. See an executive summary of the study here.

While it is a shame that “administrative” costs eat up such a large share of the asbestos dollars, it is interesting to see it actually documented that defense costs exceed the monies paid to the lawyers for the victims. This study helps document why it is so unfair to cap attorneys’ fees on one side of the “v”.

The problems with Guidant’s defibrillators continue. On Saturday, Guidant issued another warning about five more of its defibrillators. These five are in addition to the seven defibrillator models that Guidant recalled earlier last week. Guidant says that doctors “should discontinue implants of these devices pending further notice.”

It appears that Guidant has begun to do the right thing. However, only time will tell if they did the right thing in a timely fashion. Now is the time to ask Howard Baker’s famous question: What did they know, and when did they know it?

I have written about these Guidant defects before, on May 24 (Guidant Decides Not to Warn About Manufacturing Defect in Defibrillator), June 12 (Guidant Class Action Suits Filed), and June 20 (Guidant Defibrillators Recalled).

The first Vioxx trial will occur next month in Texas. Mark Lanier is the lawyer for the plaintiff; his client is the widow of a 59 year old triathlete who died in his sleep. He had been taking Vioxx for about 6 months.

Mark has a great reputation. It should be a dang good trial.

The good news is that the FDA has recalled Guidant defibrillators. Here is the press release that discusses the recall and lists the models that are being recalled. Somewhere between 40,000 and 50,000 people are affected by the recall.

It is known that two people have died because of a malfunction in the device.

The bad news is that Guidant has not yet indicated that it will pay for the full cost of the replacement (including surgeon and hospital fees). Reportedly, it is only going to pay (i.e.not charge) for the cost of a new device. A hospital charges about $2000 for a device like this; the cost to Guidant is a fraction of this amount.

I wrote on May 24th about Guidant Corporation. Not surprisingly, Guidant has been hit with class action suits concerning its defective defibrillators; read the accompanying article. This suit does not appear to include people whose loved ones who have already died because of a malfunction of the device; however, I would have to see the actual court papers to know the precise class definion. It does include those persons who currently have the device in their body.

It also appears that someone else has purported to file a personal injury or wrongful death class action – a step that rarely works and, in my mind, is only an attempt to get publicity in an effort to get more cases.

Why do personal injury and wrongful death class actions rarely work? Because the law requires that claims in class actions must be substantially similar. Personal injury and wrongful death claims usually have such different underlying factual circumstances that class certification is impossible without the defendant’s consent. Class actions seeking medical monitoring or payment for removal of the devices may be appropriate for class action certification.

A settlement has been announced in the products liability cases involving the drug Zyprexia.

This drug is alleged to cause diabetes and other serious health conditions. About 7000 lawsuits concerning the drug are pending.

Plaintiffs have a right to opt out of the settlement, which was negotiated between a steering committee of lawyers representing the plaintiffs and the drug’s manufacturer, Pfizer.

Do you remember when the drug companies told us that they were going to release more data about clinical drug trials?

That was a year ago. The New York Times has taken a look at the record developed over the last year and discovered that some drug companies are not doing what they said they would do.

Read the story here.