Punitives Verdict in Pelvic Mesh Trial

Earlier this week, we noted that the first pelvic mesh trial in New Jersey against Johnson & Johnson resulted in a plaintiff’s verdict.  Yesterday, the same jury rendered a punitive damages award against J&J.  Not surprisingly, this result has drawn immediate attention from both legal and general commentators and news outlets (e.g., Law360 (registration required), New Jersey Law Journal (registration required), Bloomberg,  Given the number of other similar claims pending against J&J in New Jersey and elsewhere, it is likely that this case will be appealed.
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DMAA Under Continuous Attack: Wrongful Death Suit Filed Against Manufacturer of Popular Dietary Supplement

On February 13, 2013, the parents of deceased soldier, Michael Sparling, filed a wrongful death lawsuit in San Diego Superior Court targeting  the controversial ingredient DMAA and naming manufacturer USPLabs  and distributor GNC Corp. as defendants. According to the Complaint, the plaintiffs are alleging that the DMAA-containing dietary supplement Jack3d is deceptively marketed as a safe and effective supplement and fails to warn consumers about potential health risks. The plaintiffs are seeking unspecified damages. Over the past several years DMAA, or Dimethylhexaneamine, has become a hot topic for legislators and plaintiffs’ lawyers following criticism that the compound is not a “natural compound” as marketed, and may lead to several serious consumer health issues. Mr. Sparling was one of two soldiers who unexpectedly died during a routine training exercise in 2011 with ...
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Verdict for Plaintiff in First New Jersey Pelvic Mesh Trial

Yesterday, a jury in Atlantic City, New Jersey returned a verdict against Johnson & Johnson in the first vaginal mesh case to proceed to trial from among the roughly 1,800 vaginal mesh cases that have been centralized before the Hon. Carol E. Higbee of the Superior Court of New Jersey.  The plaintiff, Linda Gross of South Dakota, alleged that the Gynecare Prolift vaginal mesh product that was implanted in her was defective, and that the company had also failed to adequately warn of the dangers associated with the device.  The $3.35 million award in favor of the plaintiff and her husband may increase, as Judge Higbee will allow the plaintiffs to present evidence in support of a claim for punitive damages.  While there are many more vaginal mesh cases pending ...
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Judge Higbee Denies Motion to Recuse

In December, we noted that defendants in the Accutane litigation pending in Atlantic County, New Jersey had filed a motion seeking to recuse Judge Carol Higbee, to whom virtually all the Accutane cases in New Jersey have been assigned since 2005.  In their application, the defendants — Hoffman-La Roche Inc. and Roche Laboratories Inc. — detailed examples of what they believed were indicative of both actual and apparent bias on the part of Judge Higbee against the defendants and in favor of the plaintiffs.  Oral argument in connection with the defendants’ motion was held in January, and yesterday Judge Higbee issued her opinion denying the defendants’ motion. In a seventeen-page memorandum decision, Judge Higbee defended her handling of the Accutane litigation, including her appearance, along with one of the plaintiffs’ counsel, ...
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Legislators Take Aim at Popular Dietary Supplement

On January 22, 2013, Senator Jeffrey Klein of New York set forth proposed legislation which would ban the sale and use of products containing the popular dietary compound Dimethylhexaneamine (DMAA) in the state of New York. Over the past several years, the use of DMAA  has become a hot topic for legislators and plaintiffs’ lawyers following criticism that the compound is not a “natural compound,” as marketed, and that it has led to several serious consumer health issues. The criticism helped spark a string of world-wide bans of the use of the supplement as well as its inclusion on the World Anti-Doping Agency’s prohibited list . Since 2008, approximately 76 athletes from around the world have been banned from professional sports after being found to have DMAA in their system. ...
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Labeling Inequality: FDA May Attempt To Overrule Mensing on Its Own

The Food and Drug Administration has indicated that it may allow generic drug manufacturers to alter their labeling.  The motivation for this change appears to be to address perceived inequalities stemming from the United States Supreme Court’s decision in Pilva v. Mensing, 131 S. Ct. 2567 (2011). In the Mensing decision, the Supreme Court held that patients who claim injury from generic drugs cannot sue the manufacturer for failure to warn because its labeling must match the labeling of the brand-name version of the drug.  This rule comes from the Hatch-Waxman Act which intended to bring generic drugs to the market more quickly and inexpensively.  In exchange for expedited approval, generic drug manufacturers were required to make their labels identical to those of the brand-name version. The perceived inequality in ...
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Stryker Hip Stem Claims Latest Multicounty Litigation in New Jersey

Earlier this month, the New Jersey Supreme Court granted an application to centralize all New Jersey state court claims involving Stryker Rejuvenate Hip Stems and ABG II Modular Hip Stems before the Hon. Brian Martinotti in Bergen County. Unlike the recent applications for centralizations of claims involving the Mirena contraceptive device and certain NexGen knee implant products — which were both denied (as we previously noted here and here) — the application for centralization of the Stryker Hip Stems claims was submitted by plaintiffs’ counsel.  The Mirena and NexGen applications were submitted by defendants’ counsel. Just as with the recent denials, no explanatory comments from the Supreme Court accompanied this grant of multicounty centralization, so practioners are left only to speculate as to what the relevant differences in the applications ...
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Football and Prescription Drugs – A Dangerous Combination

A former college football player for the University of Southern California, named Armond Armstead, has filed suit against the university founded upon allegations it improperly supplied players with painkillers to enable them to play in games.  Armstead, who played football for USC from 2008 to 2010, claims team doctors provided him with painkillers intended to be used for short-term treatment of post-operative pain in hospitals.  The use of these painkillers, according to Armstead, enabled him to play in games but also caused him to suffer a heart attack during the 2010 football season when he was only 20 years old.  The lawsuit contends the heart attack damaged Armstead’s future earning capacity as a professional football player in the NFL or other leagues.  Reports that have been published since Armstead filed ...
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Arguments Held on Roche Motion to Recuse

Last month, we noted that defendants Hoffman-La Roche Inc. and Roche Laboratories filed a motion seeking the recusal of Judge Carol Higbee, the New Jersey State Court judge before whom virtually all claims involving Accutane pending in New Jersey have been centralized since 2005.  As reported in Law360 (registration required), arguments were held yesterday before Judge Higbee with respect to Roche’s motion.   A decision from Judge Higbee continues to be awaited with great interest.
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Centralized Management Denied for Bayer’s Mirena Claims

In a decision reached earlier this month and posted last week, the New Jersey Supreme Court has denied an application submitted by Bayer HealthCare Pharmaceuticals, Inc. for centralized management of all pending state court actions involving its Mirena contraceptive device.  No reasons for the denial are provided in the notice, so practitioners in this area are left without any guidance as to why the Supreme Court rejected the application.  This is similar to the Supreme Court’s previous denial of centralization of the litigation involving NexGen Flex knee replacement products, as we discussed previously. While the nomenclature for centralized management of cases in New Jersey recently changed, the guidelines have not.  However, in the absence of any explanation from the Supreme Court outlining the basis for its terse decision, it is ...
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