Comments on: Pharmalot… Pharmalittle… Good Morning

By: patrons99

patrons99 — Mon, 01 Feb 2010 16:13:18 +0000

Thanks again.

By: Condor

Condor — Mon, 01 Feb 2010 16:08:28 +0000

Hey Patrons99 –

This all gets a little complicated, but the Fosamax® cases are not (yet) certified a federal class action (and they might never be so certificed).

Wyeth is more about whether federal law preempts state statutes in FDA approved prescription pharmaceuticals.

Injured plaintiffs may sue in several ways, but the right to sue is somewhat limited when an FDA approved prescription drug is alleged as the cause of the injury. In truth, this is a deeper discussion, and one that goes rather far afield of this post’s intended subject matter.

Namaste

By: patrons99

patrons99 — Mon, 01 Feb 2010 15:39:31 +0000

Thanks, Condor. So, it’s a class action suit alleging a defective product. I thought the Wyeth v. Levine Supreme Court holdings meant that such suits could be pursued in state court. Was federal preemption defeated by that ruling?

As a general question, how does an injured plaintiff seek legal redress for such injuries in a federal court, unless either diversity applies or unless a federal statute has been violated?

By: Condor

Condor — Mon, 01 Feb 2010 15:23:17 +0000

But you are correct — they are personal injury cases, and generally speaking, those may be brought under state law, as well. The plaintiffs’ attorneys hope is to find a uniform (and likely higher) level of compensation, by aggregating the cases.

Namaste

By: Condor

Condor — Mon, 01 Feb 2010 15:20:16 +0000

No, really — these are great questions, patrons99 –

These cases are products liability cases — generally alleging failure to warn, and product defects — in what the plaintiffs allege are increased risks of ONJ and BONJ (bone death) in the jaw, and in some cases, in the femur, after longer-term use of Fosamax®. Some cases also claim spinal fractures occured.

This is ironic, as Fosamax is supposed to alleviate osteoporosis. There are over 1,000 cases pending around the nation.

They are consolidated for the moment in federal court, because the injuries are largely claimed to be common (among all cases); the fact patterns may vary slightly, but the idea is to (hopefully) dispose of them as a group — a global settlement, if you will — depending on how these five bellweather trials turn out.

The state court cases are stayed, pending the outcome of this federal consolidation effort.

That is a shorthand, overly-simplified view of what’s going on here.

Namaste

By: patrons99

patrons99 — Mon, 01 Feb 2010 15:00:14 +0000

Condor: I’ve not been following these legal proceedings very closely. What federal cause of action is being alleged? Upon what is the federal court jurisdiction based? What federal law is involved? If its a personal injury COA, why not bring the suits in state court? Sorry, for these dumb (non-attorney) questions. But I’d really like to know.

By: Condor

Condor — Mon, 01 Feb 2010 14:47:54 +0000

Should have been clearer, here — there will be a total of five Fosamax® “bellweather” cases — essentially randomly selected test cases — tried before Judge Keenan, in Manhattan’s federal district courthouse.

Namaste

By: Condor

Condor — Mon, 01 Feb 2010 14:38:04 +0000

Great roundup, Ed!

Adding a little more background, and one update, on the Fosamax® cases front — federal District Court Judge Keenan will randomly select a “new” (third) individual Fosamax case to add to his trial calendar — later today (02.01.10), as a replacement “bellweather” case, since the Fleming case was dismissed in December 2009.

Namaste