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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Failure to Identify Author Supports Rejection of Publication as Learned Treatise

The use of a learned treatise at trial, either with one’s own expert or on cross-examination of an opposing expert, arises frequently in life sciences cases. When doing so with your own expert, is it helpful for your expert to have actually relied on the publication and to be able to identify who wrote it and why it is reputable? Not surprisingly, the answer, according to a New Jersey court, is yes. Lawson v. K2 Sports USA, et al. arose out of a mountain biking accident in which the plaintiff flipped over his handlebars and landed on his head, resulting in quadriplegic injuries. His claims against the manufacturer of his helmet proceeded to trial, and his attorney sought to offer testimony from his expert about an article that, according to ...
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Medical Marijuana Faces Potential Challenge by the Federal Government

During the last week of June 2017, the House Appropriations Committee released its 2018 Commerce, Justice, Science (CJS) Appropriations bill, which determines the funding levels for numerous federal agencies, including the Department of Justice. Interestingly, the bill did not include language limiting the Justice Department from taking action against state-sanctioned medical cannabis producers, retailers, or consumers. This language is known as the Rohrabacher-Blumenauer amendment. It is interesting because on or about May 1, 2017, the President signed an extension of the Rohrabacher-Farr Amendment (the bill’s previous incarnation), extending the protection of medical marijuana use through September 30, 2017. The amendment blocks federal government from spending money on medical marijuana prosecutions, assuming growers and dispensaries follow state rules. Although the amendment was reauthorized by Congress in May, US Attorney General Jeff ...
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Lobbying is not Conspiracy

Plaintiffs often seek to demonize corporate defendants, and one way they try to do so is by asserting that defendants engaged in a “conspiracy.”  For a plaintiff in one of the many talc/ovarian cancer cases pending in California state court, that tactic was unsuccessful as she failed to convince the court that she could proceed with such a claim. The plaintiff, Eva Echevarria, sought to convince Los Angeles Superior Court Judge Maren E. Nelson that she had sufficient proof that defendants Johnson & Johnson and its talc supplier, Imerys Talc America, Inc., conspired to influence the FDA and to prevent stricter regulation of talc products.  Judge Nelson rejected the plaintiff’s offer of proof, concluding that the record supported the existence of advocacy by the defendants “either directly or through the ...
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Notable Win for Baby Powder Manufacturer & Distributor, as New Jersey Federal District Court Judge Grants Motion Dismissing Claims for Lack of Standing

On July 14, 2017, a New Jersey Federal District Court Judge handed Johnson & Johnson a victory in a case involving talc and ovarian cancer, dismissing the plaintiff’s amended complaint for lack of standing and for failure to state a claim. Initially, the plaintiff filed her complaint in California Federal District Court, alleging that Johnson & Johnson engaged in unfair business practices by manufacturing, marketing, and distributing talc-based baby powder products without informing consumers that use of baby powder by women could lead to an increased risk of developing ovarian cancer.  Johnson & Johnson moved to dismiss the action in California for lack of standing, and the California Federal District Court Judge agreed. Plaintiff then filed an amended complaint in California Federal District Court, alleging causes of action for violations ...
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Shifting Regulatory Landscape for Off-Label Promotion Continues

On Wednesday, July 12, 2017, the Health Subcommittee of the Energy and Commerce Committee held a hearing to discuss proposed legislation that would impact the regulation of off-label use and promotion for drug products. There were representatives from all facets of the industry discussing the potential impact of decreasing regulation of off-label use of drugs and how it could affect patients, the public, manufacturers, and the economy. The FDA last solicited public comment on the issue of off-label use over six years ago, and the proposed bill is meant to help clarify certain confusion that has existed between the current regulations and more recent court rulings that appear to contradict and conflict with the current regulatory scheme.  The bill, in its current form, seeks to reduce regulation in order to ...
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Word to the Wise: Let Sleeping Dogs Lie … or at Least Lawsuits Based on Them

Since it is a holiday week surrounding Fourth of July we are keeping the content light and irrelevant to our blog topic. But, when a court determines that a dog sleeping in a hallway does not create an unreasonable risk, we can’t resist. In Parella v. Compeau, a panel of the New Jersey Appellate Division tackled the question of whether a “hidden” sleeping dog created a dangerous condition at a Christmas dinner (wine) party hosted at the defendants’ house. The plaintiff alleged the homeowner party hosts failed to warn her of a dangerous condition (i.e. the sleeping dog). The plaintiff, who was carrying a glass of wine when she tripped over the dog, claimed she could not see the dog because the chairs, the guests and a wall obscured her view. ...
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