Stay Where You Are: Ruling in Eastern District of New York Keeps State-Law Claims against Generic Drug Manufacturers in Federal Court

In a decision that was seen as a victory for pharmaceutical companies, U.S. District Court Judge William Kuntz denied a remand motion made by a group of plaintiffs suing a number of manufacturers of generic anti-seizure drugs.  The plaintiffs in Bowdrie, et al v. Sun Pharmaceutical Industries, Ltd., et al, 1:12-CV-00853 in the U.S. District Court for the Eastern District of New York, claim that they suffered tissue damage from taking generic anti-seizure drugs manufactured by Sun Pharmaceutical Industries, Inc., Taro Pharmaceuticals USA Inc., and Caraco Pharmaceutical Laboratories Ltd.  The plaintiffs alleged that the defendants neglected their duty to match their products’ labeling with that of their brand-name counterpart.  In denying the plaintiffs’ application to remand the actions to state court, Judge Kuntz found that even though the claims were ...
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Turning the Heat Up on the Energy Drink Industry: Monster Faces New California Class Action Lawsuit

Once again, energy drink industry leader, Monster, finds itself under heightened scrutiny and encumbered with ongoing legal challenges regarding its diverse line of energy drink products Monster.  The most recently filed, Jennifer Wooding vs. Monster Energy Company, Monster Beverage Corporation is a class action suit filed in the California Orange County Superior Court alleging that Monster has failed to warn consumers regarding the ingredient, epigallocatechin-3-gallate (ECGC) which, per the Complaint, is noted as being a   “toxic and potentially lethal ingredient”.  This latest product liability lawsuit against Monster alleges violation of the Unfair Competition Law, violations of Consumers Legal Remedies Act, breach of express warranty, breach of implied warranty and unjust enrichment. The suit is seeking restitution and damages, including punitive damages, as well as an order requiring Monster to launch ...
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Energy Drinks Take Center Stage: Risk Of Litigation For Beverage Manufacturers Heightens Under Scrutiny

Energy drinks are again under the legal microscope.  On the heels of the highly publicized wrongful death suit filed against energy drink titan Monster, involving the death of 14-year old Anais Fournier, a class action was launched in Florida against Vital Pharmaceutical Inc., manufacturer of the energy supplement drink, Redline.  In recent years the caffeine content of energy drinks has caused many to scrutinize the potential affiliated health risks associated with consuming high quantities of caffeine and the necessity for heightened FDA regulations.  Under current FDA regulations, the amount of caffeine found in soda-type beverages does not have to be included on the labeling when it is at concentrations below 02%.  At such levels, the FDA considers the ingredients to be “generally recognized as safe” or GRAS.  However, energy drinks are exempt from this ...
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Another Centralized Pharmaceutical Litigation in New Jersey?

As we have posted about before, New Jersey has an established system for coordinated, centralized litigation involving claims against pharmaceuticals and medical devices.  While the nomenclature has recently changed from “mass tort” to “multicounty litigation” the process and procedures remain the same. A new addition to New Jersey’s lineup of centralized pharmaceutical and medical device litigation may be in the offing:  this week, the New Jersey Judiciary posted an application submitted by Weitz & Luxenberg to formally centralize litigation involving two different hip stems manufactured by New Jersey’s Howmedica Osteonics Corporation d/b/a Stryker Orthopaedics.  Comments to the application are due by November 30, 2012, after which a decision on whether to not to grant the application will be made. According to the application, there are currently 10 filed cases, and ...
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Warning: Liability For Deficient Labels May Extend Beyond Your Own Products

Generally, the duty of care of a manufacturer for product liability is limited to consumers who use the manufacturer’s product.  This duty is based on the theory of strict liability in torts, which requires a plaintiff to prove that the defendant actually manufactured the injurious product.  However, in the pharmaceutical industry, courts are beginning to apply negligence principles to extend liability to persons who did not use the manufacturer’s product. In the 2009 case of Conte v. Wyeth, Inc., the California Court of Appeals held that an individual who suffered injury from a drug produced by a generic drug manufacturer could sue the manufacturer of the name-brand version, even though the individual never used the name-brand manufacturer’s product.  In reaching this conclusion, the court applied the theory of negligent misrepresentation, ...
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A Horse of a Different Color… Is Usually a Very Different Horse: Conflict-of-Law Issue Determinative of Product Liability Litigation Outcome

On October 1, 2012, the First Judicial District of Pennsylvania, Philadelphia County Court of Common Pleas, affirmed its prior decision to dismiss product liability claims against Sanofi-Aventis US, LLC. arising from the use of a generic version of its popular drug, Ambien. Madden v. Teva Pharmaceuticals USA Inc., et al. In so affirming, the Court found Washington State law was rightfully applied and the case was properly dismissed against the defendant as, pursuant to the Washington Products Liability Act, “Sanofi was not the manufacturer or seller of the product ingested by the plaintiff.” In 2010, plaintiff, Stephen Madden, brought suit against Sanolfi and Teva Pharmaceuticals USA, Inc., the manufacturer of the generic form of Ambien known as Zolpidem, claiming negligence and negligent misrepresentation against both Sanolfi and Teva for his use ...
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Pfizer’s Failure to Warn: 1 Case, $5.1 Million

On September 7, 2012, in the matter of Okuda v. Wyeth et al, a Utah federal jury found Pfizer neglected to warn of the potential side effects of Prempro and Premarin, both prescribed for hormone therapy, resulting in an award of $5.1 Million to the plaintiff. This case is one of thousands that have been filed regarding the hormone therapy drugs Premarin, Prempro and Premphase, which are prescribed to treat menopausal symptoms and have been linked to increased risk of cancer according to a study by the National Institute of Health.  Total costs of these suits, including verdicts, settlements, and legal expenses, will likely exceed $1 Billion. In this case, plaintiff Okuda brought suit in 2004 after contracting breast cancer,  alleging the defendants had misinformed consumers for years that menopause ...
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Doctors Who Would Have Prescribed Drug Even With More Specific Warnings Defeats Proximate Cause

While August is still viewed as a quieter one in legal circles, last month saw an important decision from the New Jersey Appellate Division on the vexsome issue of proximate cause in pharmaceutical failure-to-warn cases.  The opinion involved the claims of three Florida residents who sued Hoffman-La Roche in New Jersey over the anti-acne drug Accutane, alleging that they had developed severe cases of inflammatory bowel disease (IBD) after taking the drug and that the warnings as to the risks of IBD were insufficient.   Hoffman-La Roche argued that it was entitled to summary judgment because, among other reasons, the plaintiffs’ doctors testified that they would nevertheless have prescribed Accutane for the plaintiffs even in the face of a more robust warning regarding the possibility of IBD.  In other words, because the doctors ...
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New Jersey Replaces “Mass Torts” with “Multicounty Litigation”

In a move that will likely please defendants facing consolidated litigation in New Jersey, the New Jersey Supreme Court has approved changes to Rule 4:38A — the New Jersey Court Rule that authorizes the centralized management of similar cases — that will term such cases “multicounty litigation” instead of a “mass tort.”  (A complete copy of all forthcoming changes to the New Jersey Court Rules, including Rule 4:38A, is here.)  This change in nomenclature, which is effective as of September 4, 2012, does not provide any substantive change to the criteria and procedures under Rule 4:38A for designation of cases for centralized management.  Nevertheless, to the extent that defendants and their counsel have suggested over the years that the term “mass tort” may negatively imply that a product involved in such cases ...
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Warnings That Work: Pharmaceutical Manufacturer Secures Defendant’s Verdict

On Wednesday, May 30, 2011, a Connecticut federal jury held Pfizer not liable for damages resulting from a wrongful death, allegedly stemming from the decedent’s use of the product, Prempro. Prempro was approved by the FDA in 1994 and used to treat symptoms of menopause as well as prevent osteoporosis. In 2002 several studies raised concerns over the use of Prempro which was linked to unusually high instances of breast cancer. In this action, plaintiff alleged that the decedent’s six year use of the drug was a substantial factor in causing her to develop breast cancer, which ultimately resulted in her death. In issuing its verdict for the defendant, the jury stated that the product was “unavoidably unsafe.”  Fortunately for Pfizer, however, the drug contained sufficient warnings regarding the risks ...
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