December 16, 2008

Supreme Court Rules No Preemption in Cigarette Case

Yesterday the Supreme Court issued another opinion addressing the issue of preemption, Altria Group v. Good. . I have previously written on this subject several times, most recently here, here and here. The issue in Good was whether cigarette companies could be sued under state law for deceptive advertising of "light cigarettes". The tobacco companies argued that federal regulations on labeling of cigarettes block state court action and if they followed the federal regulations on labels, a state products liability suit could not be pursued. 657696_supreme_court_1.jpg

The Supreme Court ruled that the state court products liability claim could be pursued and that the federal law did not preempt or block the state court suit. This is a great ruling for consumers and the Court reiterated its previously holding that there is a presumption AGAINST preemption of state law unless it is unambiguously stated in the federal statute. This potentially could bode well for the anticipated ruling in Wyeth v. Levine which I previously discussed here and which the Supreme Court should be ruling on in the next couple months.

For a overall discussion of this ruling, see Pharmalot's discussion of the Court's ruling and how it may effect cases brought by plaintiff's injured by drugs for which proper warnings have not been provided. Also, the Wall Street Journal Law Blog has a good Q and A with its Supreme Court Reporter addressing what the Court ruled and what it may mean for future products liability litigation. Let's hope this bodes well for the upcoming ruling to be issued on the Wyeth v. Levine case. It is so important the Court not limit claimants access to the courts when they have been wronged.

October 15, 2008

Preemption - Wall Street Jounal Reports How Bush Trying to Take Away Right to Sue for Unsafe Products in His Final Days

As you are aware if you have followed my blog over time, the issue of preemption and how our right to access to the courts to address injuries caused by unsafe products is being taken away under our unsuspecting noses, has been a continuous crusade of mine. My previous discussions of this issue and what it means to the everyday consumer of products can be found here. 933364_keep_out.jpg

Well, the Wall Street Journal reports today how the Bush Administration, even in its last days, as the country's economy slowly burns to the ground, is doing everything it can to continue to block consumers' access to the court system when they are injured by defective products. The Bush administration couldn't do it the upfront way by bringing it to Congress and let it be debated in front of the American public. Instead he did it the quiet, back door way by having the various federal agencies involved in regulating products; the FDA (drugs and medical devices), NHTSA (cars and trucks) and CPSC (all other consumer products) create rules that incorporate provisions that indicate a consumer injured by a defective product which the applicable agency approved to be marketed cannot seek redress for his or her injuries in a court. Sorry, if the agency says the product is ok, that's good enough.

The American Association for Justice (AAJ) has issued a press statement and a significant paper entitled "Get Out of Jail Free -- How the Bush Administration Helps Corporations Escape Accountability" explaining in detail what the Bush administration has done over the last 8 years to take away our rights as consumers to seek redress in our courts for injuries caused by defective and unsafe products. What the Wall Street Journal article points out is that even with a new administration in power who does not agree with this underhanded method of cutting off our right to access to the court system, it could take several years to change the regulations issued by these agencies under Bush. Maybe if the Bush Administration spent more time over the last 8 years studying the economy and properly regulating the banking industry instead of figuring out ways to take away our right to access to the court system to address our injuries, we might not be waking up every morning now hearing the words "recession", "depression" and "crash".

August 18, 2008

Wall Street Journal Reports New England Journal of Medicine Sides with Plaintiffs on Preemption

As a follow up to my post at the end of this last week about preemption ( and yes, this is a really big issue as I see it so I post about it ALOT!), the Wall Street Journal reports that the New England Journal of Medicine (NEJM), the most respected medical journal in the world, filed a "friend of the court" brief with the U.S. Supreme Court in the Wyeth v. Levine case, supporting the position that preemption should not apply in pharmaceutical cases. Moreover, the NEJM argues that such lawsuits by injured plaintiffs are a "needed check to protect consumers from dangerous medicine." So even the doctors who prescribe medicines believe injured consumers should be permitted to sue pharmaceutical manufacturers even though the drug was approved for sale by the FDA. According to the Wall Street Journal, the NEJM signers say " its the first time that the full roster of current and former editors of the journal has come together on a court brief." The article goes on to discuss some interesting details regarding the brief filed on behalf of the NEJM:

The NEJM posse points to a string of problems with drugs as evidence that second-guessing the FDA is good public policy. In particular, they cite 23 drugs withdrawn from the market since 1997, including Merck’s Vioxx, Wyeth’s Redux and Pfizer’s Rezulin. “These examples demonstrate that the FDA alone cannot be the guarantor of drug safety,” the brief says. Click on the PDF icon to read the document.

In a particularly interesting twist, former NEJM editor Marcia Angell, for years the bane of trial lawyers, signed the NEJM brief supporting the rights of plaintiffs to press their cases. Angell had famously denounced junk science invoked in liability suits over breast implants in a book called “Science on Trial.” Though, we have to point out she more recently wrote a book blasting drugmakers: “The Truth About the Drug Companies: How They Deceive Us And What To Do About It.”

Lawsuits, she told the Health Blog, are now the only deterrent against misbehavior by drug companies because the FDA isn’t a reliable gatekeeper. “The FDA has been given over to the industry it regulates,” Angell said. Companies are “putting drugs on the market with insufficient evidence of safety, and keeping them there even where clear evidence of risk emerges — and the FDA has not take decisive or fast action.”


Here's hoping the Supreme Court gives due consideration to the thoughts of a highly respected and valued member of the medical community. When the one's who prescribe the medications are concerned about the power of the pharmaceutical industry over the FDA, it is indeed time to take note and do all that can be done to protect the injured consumer.

August 15, 2008

Preemption: Taking Away Your Day in Court at Top of Supreme Court's List

I have written several earlier posts on the issue of preemption and how important it is for the average American to understand how significant this issue is to your right to have your day in court. This fall, the U.S. Supreme Court will be hearing and deciding the case of Levine v. Wyeth. The issue has caused such a stir that 47 our of 50 state attorney generals submitted "friend of the court" briefs to the Supreme Court about this issue supporting the right for people to continue to be able to sue about a product even thought a federal agency such as the FDA has approved the drug for sale. One of my favorite sites, Pharmalot, has a post on this and links to the various briefs that have been submitted to the Supreme Court on this issue. Boston Globe also has article discussing the filing of the 47 "friend of the court" briefs by the various state attorney generals.

What I find most interesting is that this is a "states rights" issue. That is, even if the federal government through its agencies approves a product for sale, states should still have the right, through its court system, to allow its citizens to seek redress if they are injured by these approved products. Historically, "states rights" and the concept of smaller federal government has been a big issue supported, at least in words, by the Republican party. However on this issue, as shown by George Bush's push to have various federal agencies include language in their rulings indicating the agencies rulings preempt state law, the Republicans have pushed hard to have preemption be the law of the land. Guess the support of big business and corporate America over the average consumer, wins out over "states rights". Why??? One word answer....$$$$.

April 9, 2008

New York Times and Reader's Digest Address Problem of Preemption in Drug Cases, Part III

Continuing on with some other points made by the Reader's Digest Article regarding the problems with the FDA, the following issues of concern were raised:

3. Safety of New Drugs: The studies used by the drug industry to obtain approval from the FDA are so small and for such a short period of time, that the true safety of the drug cannot be determined before it is approved for marketing. As the article points out, typically, the studies used to obtain FDA approval only involve between 600-3,000 people and often only go on for a couple months. The studies also focus on specific type of people and often keep out people with any other problems other than the problem the drug is seeking to address. Therefore, once it gets on the market and used by the greater population who may have many other ailments other than the one which the drug addresses and be on many other medications at the same time which interact with the new drug, we all of a sudden see many other problems the drug can cause. As an example, this is one of the problems that arose with the drug Baycol which was ultimately withdrawn from the market. Baycol was a statin/anti-cholesterol drug, like Lipitor and Zocor, which was marketed to lower your cholesterol. People with cholesterol problems may also have a problem with their triglycerides. Historically, doctors will also prescribe a drug known as Lopid or gemfibrozil with the statin drug to also address the triglycerides. Even though this happens on a regular basis, when Bayer did its pre-marketing testing of Baycol, it never addressed Baycol's usage with Lopid. Ultimately when it obtained approval and Baycol began to be sold, it was found that people who took Baycol and Lopid together had a signficant increased risk of developing the condition of rhabdomyolisis which I discussed in one of my previous posts. Bayer never addressed using its drug Baycol with a drug which is commonly prescribed with a statin type drug, therefore no one knew how patients would react until it was on the market. The question arises, shouldn't the drug manufacturer be required to evaluate use of its drug with the types of drugs it is expected to be co-prescribed with? This is not required by the FDA and typically is never done. Moreover, many drugs are approved subject to the drug company performing additional testing. However, as the article points out, the FDA can't enforce this agreement to do further studies and 65% of the studies that have been promised in recent years have not even been started.

There have been some recent changes instituted by Congress which should help this. More money has been provided to the FDA to improve drug safety. Also, FDA can now require companies to follow the long term effects of their drugs or face fines of up to $10 million. Also, companies can no longer cherry pick the tests and studies they publish and deep six the bad ones. All clinical studies have to be published within one year of completion. But, according to the article, companies can wait 3 years to publish summaries written for the general public to understand. It is definitely a step in the right direction.

4. The article goes on to discuss other problems at the FDA such as shutting up FDA employees who have something bad to say about a drug or FDA advisory boards which provide the FDA with recommendations of what to do about a particular drug, with over half their members being paid by the drug companies in some form or fashion. The question then becomes, are you going to bite the hand the feeds you???? (Yeah, my own dog has done that, but only when I was taking a bone full of meat out of her mouth.) There have been attempts by Congress to remedy some of these problems, but we still have a long way to go till we have a properly funded and fully independent FDA who can really do the job it has been given to do....protect us from unsafe drugs and food.

Which brings this all around to that nasty issue of preemption. If the argument goes that we should leave it to the FDA to decide what drugs are safe and what are not, and what warnings should be given for these drugs, and not to our court system and individuals who cannot understand the difficult scientific and medical issues which need to be balanced when addressing the sale and marketing of a drug, the argument assumes we truly have an agency who has all the tools to make those decisions in a proper and unbiased manner. What this article points out in so many ways is that at this point at least, we do not have such an agency. Yes, things are being done to improve the process and to give the FDA more autonomy from the drug industry in making these important decisions. However, much work remains before we can all feel confident that the pill we are putting in our mouth won't do something to us that we don't know about, and that Big Pharma forgot to tell us about. Thus it is important that the right remain to the court system and the jury system to determine if the public...and the FDA....was given all the information necessary to make a decision whether the drug at issue is safe.

April 7, 2008

New York Times and Reader's Digest Address Problem of Preemption in Drug Cases, Part II

Let me start off by saying that NO, I am not a regular or avid reader of Reader's Digest. Have to say, I always considered it a publication for my Mom and Dad to read. Of course, now at the ripe old age of 48, I guess I have now become my Mom and Dad and the world has come full circle. Anyway, I digress. In the April Edition of Reader's Digest, a very insightful article has been published entitled What's Ailing the FDA? In it the author discusses the overworked and underfunded FDA and how it is not able to do the job it is assigned to do, protect the public from dangerous food and drugs. A couple key points in the article bear mentioning:

1. The funding provided for this agency to do its job of regulating food, drugs, vaccines, medical devices, cell phones, dietary supplements and biotechnology is equivalent to what a county school system in Virginia is provided. The FDA's own advisory Science Board commissioned a report which led one of the members of that Board to say, "We were shocked at the appalling state of science at the FDA." The Institute of Medicine has labeled the drug branch of the FDA "dysfunctional", indicating it quiets those at the FDA who disagree, inadequately monitors drug safety and relies too much on the financial support of the drug companies, who it is given the job to regulate.

2. Pressure of the Drug Industry: Big Pharma pressures the FDA to speed up decisions on drugs so it can get the drugs to the market and make money, and to soft-pedal problems with the drugs. The article points out that Big Pharma now pays for over half of the budget of the FDA for drug review. This money comes from Big Pharma through user fees the drug companies pay the FDA to speed the drug review process. As the article suggests, it may save taxpayers money, but it calls into question the independence of the FDA when making decisions.

Moreover, there has been a big push by the drug companies for faster approval of drugs i.e. get on the market quicker so the money comes in quicker. We can all agree that getting important lifesaving drugs on the market quicker is important. Who can dispute that pushing through the approval of a drug that can cure a certain type of cancer is not important. However, when this same pressure is used to push through approval of a "life style" drug, like something to help with "restless leg syndrome" ( a condition the drug companies came up with so it could have a disease for its drug to treat), the FDA is not able to fulfill its role of really addressing the potential safety issues with these drugs. The FDA denies the overriding influence of the pharmaceutical industry in making its decisions, but the truth lies in the results. Think Vioxx, Ortho Evra, Baycol, Singulair, Chantix...and the list goes on and on. All these situations have shown that the FDA was not given complete information about a drug, or the drug company failed to disclose all the information it had. Instead the drug companies pushed like hell to get its drug to market for the almighty dollar.

April 6, 2008

New York Times and Reader's Digest Address Problem of Preemption in Drug Cases, Part I

Well even the mainstream media is really catching on to the problems I discussed last week about preemption. Both the New York Times and Reader's Digest have just recently printed articles taking on the issue of preemption and how the problems at the FDA make this issue one of significant importance. In the New York Times article, which appeared on the front page of Sunday's edition, it explains how the issue of preemption may significantly effect ongoing litigation involving the Ortho Evra birth control patch (the Patch). As background, the Patch was touted by its manufacturer, Johnson & Johnson (J&J), as an easy alternative to the Pill. Instead of having to take a pill every day, the Patch was applied weekly. J&J told the FDA that this patch would actually supply less estrogen to women than the Pill, but yet still provide protection from pregnancy. The amount of estrogen that goes into a woman's body is important because, as addressed in the article, it has been known for a long time that high doses of estrogen raise the risks of blood clots which can lead to heart attacks and strokes.

The New York Times article goes on to explain how a study was done for J&J on the Patch and it found in 1999 that in fact the Patch released significantly more estrogen into the body than the Pill, Moreover, the amount of estrogen being put into the body by the patch was at a dangerous level and beyond the level of estrogen which the FDA had determined 11 years earlier, could not be sold in the Pill. The interesting fact was that the author of this J&J study, who has since retired from J&J, applied what has come to be known as a "correction factor" to this study such that he played with the numbers and showed that the Patch released alot less estrogen into the body than the study actually showed, Apparently when this study was provided to the FDA so it could evaluate the Patch, it only mentioned this "correction factor" ONCE in 435 pages of the report, and that mention was only when discussing a complicated math formula. J&J did what they could to obscure the fact that this "correction factor" was applied to the results so that the levels of estrogen being released into the body looked OK, when in fact they were at dangerous levels.

Ultimately the FDA relied on this study to make its decisions regarding approval of the drug and the warning to place on the drug. J&J had two other studies, one in 1999 and one in 2003 which both showed that the Patch released more estrogen than the Pill, but guess what???? J&J delayed giving this information to the FDA.

J&J has now filed a motion with the Court requesting it find preemption and that the lawsuits regarding this drug not be permitted to continue. The argument goes that the FDA is in the best position to decide issues regarding whether the warnings are good and since the FDA approved the warnings regarding the Patch, a court cannot now say the FDA was wrong. Problem with this argument is that the FDA's decision is only as good as the information provided to it by the manufacturer when it makes these decisions. The FDA does not do its own testing on these drugs. It relies on the manufacturers to be forthright and provide it with all the information it has learned about the drug.....good AND bad. It appears J&J hid this problematic information from the FDA when it made its decisions about permitting the marketing of the Patch and the warnings that should go with the Patch.

This is one of the main reasons for the problematic nature of preemption, especially in the context of the FDA. The drug manufacturers argue that the FDA should have the last word about warnings on a drug. But this assumes the FDA is provided ALL the necessary information to make the right decisions, and clearly in the case of the Patch, that was not the case.

As mentioned at the beginning of this post, Reader's Digest published an article recently addressing the problems with the FDA which also relates to this issue of preemption. Stay tuned for part II of this post where I will address this article and how it points out problems at the FDA which impact on this argument of preemption.

March 31, 2008

Business Week Magazine Addresses Federal Preemption Concern

Following up on my comments last week about the issue of federal preemption and how our right to jury trial is up for grabs, an article appeared in Business Week yesterday addressing these same concerns. An interesting take Business Week has on this issue is from Attorney Generals (AGs) from 26 states who wrote a letter to the National Highway Transportation Safety Administration (NHTSA), the federal governing body for cars, requesting NHTSA drop the lawsuit protection (preemption) from the new rules for rollover protection that manufacturers have to comply with when designing cars. In the letter the AGs stated "State governments and the federal government will have to cover millions of dollars in healthcare costs which they will pass along to taxpayers, costs that, by all rights, should be the responsibility of the manufacturers." Basically, the only ones who win in this battle is Corporate America. There is something wrong in our system when those responsible do not have to step up to the plate and pay for their wrongdoing. Our governmental system is one of checks and balances and this is one check we can not afford to let pass.

March 28, 2008

New York Times Addresses Preemption Concerns Led to Alaska Settlement of Zyprexa Claim

Just a quick follow up to the previous post on preemption. The New York Times today had an article about the recent settlement by the State of Alaska regarding its suit against Eli Lilly on the drug Zyprexa and how the preemption concern is one of the main reasons Alaska decided to settle during the trial. This is a real issue with significant potential for affecting the future of our jury system of justice. When the federal government, regulatory agencies and corporate America are free to pursue their own selfish goals, we as Americans can only be on one side....the losing side.

March 28, 2008

Preemption and the Supreme Court: Our Rights Are Being Taken Away And Nobody Knows

The San Francisco Chronicle had an Editorial piece in todays paper addressing the upcoming argument before the Supreme Court regarding the issue of federal preemption. It is a legal concept which is not so easily understood unless you are mired in the works of the justice system. Essentially federal preemption, as is explained in the editorial, is the argument that federal law or regulation preempts any state law to the contrary. As an example, if there is a federal law making it illegal to possess video games (both my sons would have to leave the country), a state could not make a law which makes it legal to possess video games.

In the litigation world, when a state court jury makes a determination that a corporation is liable for putting a defective product in the market, that is considered the state making law. In the particular case going before the Supreme Court, a state court jury found a drug manufacturer liable to a plaintiff who lost who arm when the drug Phenergan was given to her intravenously. The jury found that Wyeth, the manufacturer of the drug, knew about this potential problem, but didn't warn about it in the label for the drug.

Wyeth is now arguing that federal regulations, i.e. those instituted by the FDA, preempt state law. Therefore,the argument goes, since the FDA approved of the warning, a state court jury cannot come back and say...well even if the FDA thought the warning was OK, we the jury do not and you need to pay for the damages that has caused. The theory behind this concept is that the regulatory agencies are protecting the public and they are better educated about these issues and the agency should be the final decider (a "George Bushism") regarding whether a warning is sufficient or not.

That is all well and good if the agency is given all the information it needs to properly make those decisions. However, at least when it comes to the FDA, we know that is not the case. The rules of the FDA generally only require the manufacturer to provide proof that drug does what the manufacturer said it does (what is termed the efficacy of the drug), and only advise of any significant safety issues that were learned during the pre-market testing of the drug. Specifically, the drug company is not required to provide the FDA with ALL the testing it has done on the drug; only the testing that proves it works as proposed needs to be provided to the FDA. So if during pre-market testing some of the studies done don't come out as the manufacturer likes, they can just be "deep sixed" as they say. Bottom line, the concept of preemption might work if the agency had ALL the necessary information needed to make an educated decision. However, that is not the reality.

Because this is a technical legal argument, the average man or woman on the street is not really paying attention. However, if the Supreme Court finds under the circumstances of this upcoming case that there is federal preemption, the next time that average man or woman goes to his or her attorney describing how their child took their own life due to a drug, the only response they will hear is ..."Sorry you don't have a case." Your right to legal redress in a court of law before a jury of your peers no longer exists. The federal government, and the courts have taken that away. By that time unfortunately it may be too late.