Posts Tagged ‘pharmaceuticals’

Oklahoma judge orders J&J to pay state $572 million over opioid sales

“A judge in Oklahoma on Monday ruled that Johnson & Johnson had intentionally played down the dangers and oversold the benefits of opioids, and ordered it to pay the state $572 million.” The state had asked for $17 billion. [Jan Hoffman, New York Times and sidebar on why J&J, the deepest pocket, was the only defendant left standing in the Oklahoma case; opinion; Paul Demko, Politico; Lenny Bernstein, Washington Post] Caleb Brown interviewed me for the Cato Daily Podcast:

For other skeptical views of the case, see Daniel Fisher, Legal NewsLine (“J&J had about 3% market share, sold abuse-resistant drugs, and Oklahoma didn’t present evidence of a single doctor who was misled by its marketing.”) and followup (problems with state’s legal theory), Jeffrey Singer/Cato, and Jacob Sullum, Reason (sweeping definition of public nuisance) and followup (other problems). [More: Jonathan Turley]

Particularly worth noting is Jacob Sullum’s account of the logical path traced by Judge James Hill in North Dakota in recently dismissing a suit against Purdue Pharma:

One of the claims against the company involved a public nuisance statute very similar to Oklahoma’s. Hill noted that “North Dakota courts have not extended the nuisance statute to cases involving the sale of goods.” He cited a 1993 case in which the Tioga Public School District #15 of Williams County, North Dakota, argued that the sale of acoustical plaster containing asbestos qualified as a public nuisance.

The U.S. Court of Appeals for the 8th Circuit, which handled the case because it involved an out-of-state defendant, observed that “North Dakota cases applying the state’s nuisance statute all appear to arise in the classic context of a landowner or other person in control of property conducting an activity on his land in such a manner as to interfere with the property rights of a neighbor.” The 8th Circuit worried about the consequences of venturing beyond that “classic context”:

To interpret the nuisance statute in the manner espoused by Tioga would in effect totally rewrite North Dakota tort law. Under Tioga’s theory, any injury suffered in North Dakota would give rise to a cause of action under section 43-02-01 regardless of the defendant’s degree of culpability or of the availability of other traditional tort law theories of recovery. Nuisance thus would become a monster that would devour in one gulp the entire law of tort, a development we cannot imagine the North Dakota legislature intended when it enacted the nuisance statute.

Hill said he “agrees with the reasoning of the Eighth Circuit in Tioga.” As in that case, he said, the state in its lawsuit against Purdue was “clearly seeking to extend the application of the nuisance statute to a situation where one party has sold to another a product that later is alleged to constitute a nuisance.” Hill added:

The reality is that Purdue has no control over its product after it is sold to distributors, then to pharmacies, and then prescribed to consumers, i.e. after it enters the market. Purdue cannot control how doctors prescribe its products and it certainly cannot control how individual patients use and respond to its products, regardless of any warning or instruction Purdue may give.

Judging from the cases cited by Judge Balkman, Oklahoma courts have not read that state’s nuisance law to cover situations like this either—until now.

 

Pharmaceutical roundup

Medical roundup

Nanny state roundup

  • London ban on transit ads depicting “bad” foods winds up nixing images of Wimbledon strawberries and cream, bacon, butter, cheese, jam, honey, and Christmas pudding [Scott Shackford]
  • And more: British medical journal The Lancet wants to do some highly non-consensual poking and jabbing at your midsection, with the aim of making you lose weight; highlights include funding activist campaigns, cutting business out of policy discussions, and routing policy through the least accountable international organizations [Christopher Snowdon, The Spectator; more from Snowdon on state-subsidized anti-food advocacy in Britain; Nina Teicholz]
  • Pushing back on the Lancet panel’s guideline that each person be allowed no more than one egg and less than 3.5 ounces of red meat a week [Mark Hemingway]
  • “The Problem With Nudging People to Happiness” [Randy Barnett reviews Cass Sunstein’s On Freedom]
  • “Pharmaceutical Freedom: Why Patients Have a Right to Self Medicate”, Cato Daily Podcast with Jessica Flanigan and Caleb Brown;
  • “Proposed Anti-Soda Bills in California Would Ban Big Gulps, Mandate Warning Labels on Vending Machines” [Christian Britschgi] “Medical Groups Endorse New Taxes and Marketing Restrictions on Soda — For the children, of course” [Baylen Linnekin]

On Xarelto, plaintiff’s lawyers win by losing

“In terms of the evidence, the trial lawyers [suing Bayer and Johnson & Johnson over the blood thinner Xarelto] had a losing hand — any kind of sane judicial system would have them leaving the field of battle, a defeated army.” But they’d signed up a remarkable 25,000 clients, buying an estimated 129,000 ads seeking such business in 2016, with one law firm alone spending $20 million a year on promotion. When you’ve got that big a base of clients to throw at them, “companies settle meritless cases.” [Joe Nocera, Bloomberg Opinion]

Medical roundup

  • Sued if you do, sued if you don’t: drugmaker faces lawsuits over failure to provide Fosamax warning that FDA told it not to provide [Jim Copland, James Beck on Merck Sharp & Dohme v. Albrecht, pending at Supreme Court]
  • On new APA masculinity guidelines, Sally Satel cuts to the point: will they improve the success of therapy for people seeking help? [Washington Post]
  • What does it mean to say the opioid litigation might follow the tobacco model? [Rob McKenna, U.S. Chamber] Citing fate of earlier gun lawsuit filed by city of Bridgeport, state judge dismisses four lawsuits filed by Connecticut cities against opioid industry [Daniel Fisher, Legal NewsLine]
  • I do miss the days when leaders of the public health profession focused on communicable diseases like typhus rather than running after Bloomberg grants to promote soda bans [Joel Grover and Amy Corral, NBC Los Angeles]
  • Cooking the books on infant mortality: about those Cuban life expectancy stats [David R. Henderson]
  • As artificial intelligence begins to make inroads into medical diagnosis, liability issues loom large [Beck, see related linked earlier]

Feds: we’ve had it with qui tam gamesmanship

“The U.S. Department of Justice is asking federal judges around the country to dismiss lawsuits it says are brought by shell companies that misrepresent their true purposes – filing meritless litigation against health care companies…. The DOJ says these plaintiffs were created for the sole purpose of filing suit under the federal False Claims Act and is complaining that it spent hundreds of hours investigating kickback allegations only to find no merit to them…. Among the law firms representing the plaintiffs in the cases is the firm of prominent personal injury lawyer Mark Lanier of Texas.” [P. David Yates, Legal NewsLine/Forbes]

“Significant to DOJ’s analysis was the fact that the qui tam relators used ‘false pretenses’ to obtain information from witnesses. According to the government, the actions all were filed by a ‘professional relator’ entity that sought to develop contacts and inside information under the guise of conducting a research study of the pharmaceutical industry, and offering to pay individuals for information provided in a purported ‘qualitative research study,’ even though the information was ‘actually being collected for use in qui tam complaints filed by [the professional relator] through its pseudonymous limited liability companies.’…it would be awkward for DOJ to sit idly by and allow qui tam cases to proceed, in the government’s name—which is how the qui tam system works—when those cases are purportedly premised on a scheme one district court already described as involving ethical violations and ‘an elaborate series of falsehoods, misrepresentation, and deceptive conduct.'” [Joe Metro and Andy Bernasconi, Drug and Device Law]

And yet more: “Prominent qui tam lawyers are now questioning the nomination of William Barr as attorney general, citing comments he made nearly 30 years ago questioning the constitutionality of private relators under the FCA. Some of the lawyers who signed a recent letter to U.S. Sen. Chuck Grassley criticizing Barr, including Harvard Law School Professor Nancy Gertner, participated in litigation against Celgene that the government declined to join but nevertheless generated $280 million in settlements and more than $30 million in legal fees.” [Daniel Fisher, Legal NewsLine/Forbes]

Medical roundup

  • No, the federal court ruling in Texas isn’t likely to take down the Affordable Care Act / ObamaCare [Ilya Shapiro]
  • Should doctors exhort their patients to vote? Hell, no [Wesley J. Smith]
  • “Accutane Litigation Goes Out with a Bang, Not a Whimper” [James Beck, Drug & Device Law] “The Worst Prescription Drug/Medical Device Decisions of 2018” [same; plus the best]
  • Proposal for price controls on Medicare Part B might amount to drug reimportation lite [Roger Pilon] Canadian reimportation as shiny object [Beck]
  • The European Medicines Agency has approved the powerful new opioid Dsuvia, and FDA head Gottlieb made the right choice in following suit, Sen. Markey and Public Citizen notwithstanding [Jeffrey Singer, Cato]
  • “Your doctors didn’t jump out of business; they were pushed. And they were pushed by people way too convinced of their qualifications to redesign the world around them.” [J.D. Tuccille, Reason]