Tuesday, December 30, 2008

From the Blog Drug & Device Law 10 "Worst" Decisions of 08

The Drug and Device Law Blog is a must read for me. This month, the folks there compiled a list of "worst" court decisions. Why are these the worst? Read on ... and read the complete list by going here:

"1. Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008). It’s only an intermediate appellate court decision, but the implications are staggering. The court held that the manufacturer of a pioneer (name-brand) drug can be liable for the inadequate warnings on a competing generic product. The mere label (“misrepresentation”) on the cause of action throws out 50 years of justifying product liability on the basis that the party profiting from the product should bear the burden of compensating product-related injuries.

2. In re Zyprexa Products Liability Litigation, 253 F.R.D. 69 (E.D.N.Y. 2008). It’s Judge Weinstein. It’s a class action. That means that the result favors the plaintiffs, and the certification order is accompanied by a plausibly reasoned (if you think all class actions should be certified) opinion that goes on forever. Having had class certifications shot down by the appellate courts on market share, nuisance, and consumer fraud, this time Judge Weinstein tries non-reliance RICO. So it’s off to the Second Circuit again.

3. Hyman & Armstrong, P.S.C. v. Gunderson, ___ S.W.3d ___, 2008 WL 1849798 (Ky. April 24, 2008). In federal court, Parlodel stroke cases have almost always been thrown out on Daubert grounds - no scientific basis for causation. In Kentucky, they go to the jury and produce eight-figure verdicts – and they get affirmed by the Kentucky Supreme Court on the basis that you can prove causation with a dog and pony show featuring a bit of this and a bit of that, when none of the bits are valid science in and of themselves. "

Those are three of the ten. Biting commentary included. I'm not an attorney who advocates class actions cases, and find them particularly troubling in cases involving unsafe/recalled drugs. In fact, I despise them generally speaking. The other cases mentioned are worth a read of each opinion. Otherwise, you're essentially stuck with reading a movie review only of each case.

Happy reading!