Federal Law Preempts State Law Regarding Discrimination Lawsuit Brought by Employee Terminated due to Medical Marijuana Use

In our last two posts related to this issue, we’ve discussed how states have interpreted and applied their own laws regarding medical marijuana use in the context of employment discrimination lawsuits when faced with opposing federal law under the Federal Controlled Substances Act. In Noffsinger v. SSC Niantic Operating Company LLC, 2017 WL 3401260, the Connecticut Supreme Court held that any person who used marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refused to employ them for this reason. In Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (2017), the Massachusetts Supreme Court concluded that a plaintiff may seek a remedy through claims of handicap discrimination in violation of Massachusetts General Law chapter 151B after she was terminated ...
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Appeals Courts Vacate Half a Billion in Verdicts Against Johnson & Johnson

Johnson & Johnson (J&J) has successfully challenged two talc verdicts and has mitigated nearly $500 million in damages in less than a week. The largest verdict to date, the $417 million  Echevarria verdict, was reversed and a new trial has been ordered. This decision comes at the heels of J&J convincing a St. Louis appeals court to vacate a separate $72 million verdict. Superior Court Judge Maren Nelson concluded that the evidence presented during Echevaria’s trial didn’t support the large verdict.  Judge Nelson wrote that “reviewing all of the evidence in the light most favorable to Echevarria, the best that can be said is that that there was (and is) an ongoing debate in the scientific and medical community about whether talc more probably that not causes ovarian cancer and ...
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Seventh Circuit Bars RICO Claims by Third-Party Payors Against Drug Companies Based on Off-Label Promotion

On October 12, 2017, in Sidney Hillman Health Center of Rochester v. Abbott Laboratories, —F.3d —-, 2017 WL 4544834 (7th Cir. 2017), the Seventh Circuit affirmed the dismissal of a civil RICO class action by third-party payors against drug manufacturer Abbott Laboratories. The decision appears to completely foreclose payors’ suits against drug companies for off-label promotion under the Racketeer Influenced and Corrupt Organizations Act (RICO) and potentially signals a bar against tort claims of any kind by payors against drug companies for off-label promotion practices. In 2012, Abbott paid $1.6 billion to settle qui tam actions filed against it under the False Claims Act for off-label promotion of its drug Depakote (divalproex sodium). It is alleged to have used intermediaries to encourage the prescribing of the drug for off-label purposes. ...
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Lone Pine Orders: Not Just for Multi-Plaintiff Litigation?

So-called “Lone Pine” orders derive from Lone Pine v. Lore, 1986 WL 637507 (N.J. Sup. Ct. Law Div. Nov. 18, 1986), and have often been used by state and federal courts to promote efficiency in discovery by requiring plaintiffs to provide some medical or scientific proof that their exposure to a product caused their injuries before requiring the parties to engage in the usual full-blown and expensive discovery process. In most instances, Lone Pine orders are employed in cases involving large numbers of plaintiffs as a case management tool to “weed out” those cases for which causation cannot be established. But what if you have a single-plaintiff or one-off case that involves a novel claim, for which you anticipate that the plaintiff may ultimately be unable to establish that her ...
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State Law Wins (Again) Over Federal Law When Firing Someone for the Legal Use of Medical Marijuana

We recently discussed Noffsinger v. SSC Niantic Operating Company LLC, 2017 WL 3401260, wherein the Connecticut Supreme Court analyzed whether federal law precluded enforcement of a Connecticut law that prohibited employers from firing or refusing to hire someone who used marijuana for medicinal purposes. The Connecticut Supreme Court held that any person who used marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refused to employ them for this reason. The issue continues to come up in various forms in a number of states and was recently addressed by the Massachusetts Supreme Court. As many people know, in 2012, Massachusetts approved a medical marijuana act whose stated purpose is “that there should be no punishment under state law for qualifying ...
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FDA Clarifies Trading Partners Under the Drug Supply Chain Security Act

The Federal Food and Drug Administration (FDA) recently published several draft guidelines to aid industry and State and Local governments in understanding how to define entities in the drug-supply chain in accordance with the Drug Supply Chain Security Act (DSCSA). DSCSA — enacted as part of the Drug Quality and Security Act of 2013 — delineates the steps manufacturers, re-packagers, wholesale distributors, dispensers (i.e. pharmacies), and third-party logistics providers need to take to develop an electronic, interoperable system that tracks a drug at a unit level through its trajectory in the drug-supply chain. DSCSA includes provisions that speak to product verification and identification, data sharing, record keeping, and unified licensure standards for wholesale distributors and third-party logistics providers. Since it became law in 2013, industry members and practitioners have raised ...
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California Johnson & Johnson Talc Cancer Risk Verdict

By now, most readers know that recently, Johnson & Johnson (J&J) was ordered to pay $417 million to a woman from East Los Angeles who claimed that she developed terminal ovarian cancer from using J&J’s talc powder products. The verdict included $70 million in compensatory damages and $347 million in punitive damages. While this was the first such case to go to verdict against J&J in California — where hundreds of other similar cases are pending — this is not the first trial verdict nationally. To date, there have been five trials in Missouri, with plaintiffs prevailing in four of those cases and J&J winning one. And in New Jersey, the state court judge overseeing the centralized cases pending against J&J has dismissed several cases on the grounds that plaintiffs’ ...
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State Law Trumps Federal Law When Firing or Refusing to Hire Someone Due to Use of Medical Marijuana

As noted in some of our earlier posts, a growing number of states have allowed marijuana use when it is used for medicinal purposes. This is despite the fact that federal law still classifies marijuana as a Schedule I substance, on par with heroin and cocaine. Because of the growing use of medical marijuana, more and more litigation is arising. In Connecticut, a recent court decision firmly announced that state law trumped federal law when dealing with employment issues related to medical marijuana use. Connecticut is one of a growing number of states to allow the use of marijuana for medicinal purposes. Connecticut also bars employers from firing or refusing to hire an employee who uses medical marijuana in compliance with the requirements of Connecticut law. This is contrasted by ...
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Third Defense Verdict in Xarelto Litigation

On Friday, August 18, 2017, a federal jury in Mississippi rendered a defense verdict in favor of Janssen Pharmaceuticals, Inc. and Bayer HealthCare Pharmaceuticals, Inc. in a bellwether trial involving the prescription blood thinner Xarelto. The plaintiff alleged Xarelto caused gastrointestinal bleeding resulting in her hospitalization. Federal District Court Judge Eldon E. Fallon presided over the case. Notwithstanding the claims and evidence presented by the plaintiff, a jury returned what is now the third straight defense verdict for Janssen and Bayer in several bellwether trials scheduled in a federal multi-district litigation involving Xarelto where the plaintiffs allege defendants did not warn about the possibility of dangerous internal bleeding associated with the drug. Previously, in May 2017 and June 2017, two federal juries in Louisiana returned defense verdicts in favor of ...
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The FTC has its Eyes on Biotech for Antitrust Enforcement

On July 27, 2017, representatives of the Food and Drug Administration (FDA) and Federal Trade Commission (FTC) gave coordinated testimony to Congress that ought to raise alarm bells for pharmaceutical companies. Scott Gottlieb, Commissioner of the FDA, and Markus Meier, Acting Director of the Bureau of Competition at the FTC, both testified before the House Judiciary Committee’s Subcommittee on Regulatory Reform Commercial and Antitrust Law. Their statements announced a renewed coordination between the respective agencies with a goal to increase competition in the pharmaceuticals market and drive down prices for consumers. Both generic and branded drug companies should take note. The pair identified three strategies by which drug companies delay the entry of generics into the marketplace, thereby reducing competition, and increasing the period during which consumers pay a higher ...
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