Big Drug Cases Evaporate Next Fall??

I have been wanting to post this for about 2 weeks now, but I have kept putting off researching the cases myself. I finally said screw it, I will just post it the way it is. So please excuse any misreading of the cases as I am summing up some of the numerous news stories that I have heard on the topic.

A couple of recent cases and one on the way before the Supreme Court may end pharmaceutical products liability, or for that matter, it may eliminate most or all cases against drug makers for any unwarranted health effects of medications. This spring the Supreme Court in its “infinite wisdom” decided 2 cases: Riegel v. Medtronic and Warner-Lambert v. Kent. The decisions in these cases indicate that the Supreme Court is going down a road that the approval of a drug by the FDA preempts any tortuous action based on the taking of that drug. How did I come to this conclusion? Why does this matter? How does it affect you?

First the conclusion—
Riegel v. Medtronic was a 8-1 decision by the Supreme Court which I believe was written by J. Scalia was delivered on Wednesday, February 20, 2008. The lone dissenter was J. Ginsberg.
The decision made medical device makers immune from personal injuries liability if the Food and Drug Administration has approved a device before it is marketed. This decision preempts state law under the authority of the Medical Device Amendments of 1976 to (I believe) the Food, Drug and Cosmetic Act of 1938. These amendments apparently did have some preemptory language which the Supreme Court extended to cover any medical device that met the requirements.
It is yet to be seen exactly how many additional medical device cases this new preemption net will catch, though apparently there are several that were active that will be immediately affected. The case also apparently does not prevent suits for negligent manufacture. However, if a medical device is made in accord with FDA regulations, then it apparently falls under this preemption protection and any remedies are only under Federal law.

Warner-Lambert v. Kent was a 4-4 decision by the Supreme Court with C.J. Roberts abstaining because he held 5,000-50,000 shares of stock in Warner-Lambert’s Parent company. The decision was delivered on Monday, March 3, 2008.
The tie vote automatically affirms the lower court’s judgment. Here a federal appeals court had rejected the company’s argument that Supreme Court precedent barred personal injury suits that are based on a claim that a drug manufacturer obtained FDA approval through fraud. As a side note, this case in itself might have been distinguished from other cases in any case, because it seems to have been based on a relatively unusual state statute.
The affirmation obviously holds little or no precedential value, but C.J. Roberts was the one who sat out the decision. Would he have voted, based on the Medtronic case, he would have been in favor of a preemption of individual damage suits.

Wyeth v. Levine will come before the Supreme Court in the next term. The full court will be asked to decide whether FDA approval will preempt personal injury suits where the label failed to include adequate warnings. Such warnings could include things like that Vioxx could increase the risk of heart attacks or that atypical antipsychotics (like Zyprexa or Seroquel) could increase the risk of weight gain and diabetes.

This Matters Because—
All these recent designer drug cases might evaporate this fall in the midst of a ruling for the Pharmaceutical companies. This is bad for lawyers in this region of the country in general. And specifically lawyers in the Philadelphia Area, as there are several Pharmaceutical companies located in the Philly area. Plaintiffs firms out here will not be able to take the leads in some of these class action suits anymore, as they will be gone. The Defense firms will be able to make cutbacks in their health effects departments because there are not going to be nearly so many cases. AND…

More immediate to all of you, contract work on these cases will dry up. For the last 3-5 years, Pharmaceutical cases have been a bigger and bigger part of contract legal work in Philly. The Vioxx project alone had about 200 or so attorneys on it. There are several projects that are currently on-going in the city dealing with other drugs. They could end.

Philadelphia while still an attractive market for some firms because of the lower pay rates then NYC or DC, could suddenly find itself flooded with many contract attorneys out on the street scrounging for work both contract and otherwise, and without a clear market to fill the void.

How Does This Affect You—
If working on a drug case you could be put out of work. If looking for a job, you will have a lot more competition. There will no longer be as large of a net of contract work at least for awhile.

Advice—
Get off a drug case in favor of another gig, find a new job before the decision comes down. Keep your head down, hold on tight, and prey your job doesn’t end because of this.

Here are some links that you can use to look into the situation further on your own:

http://query.nytimes.com/gst/fullpage.html?res=9E04E3D8153AF932A15751C0A96E9C8B63&sec=&spon=&pagewanted=1

http://pharmexec.findpharma.com/pharmexec/News/Supreme-Court-Splits-on-Warner-Lambert-Preemption-/ArticleStandard/Article/detail/500187?contextCategoryId=43753

http://www.oyez.org/cases/2000-2009/2007/2007_06_179/

http://www.oyez.org/cases/2000-2009/2007/2007_06_1498/

http://www.oyez.org/cases/2000-2009/2008/2008_06_1249/

http://www.supremecourtus.gov/

Here is a blog by an attorney at Dechert and one from Jones Day on this type of law:
http://druganddevicelaw.blogspot.com/

Please comment. I would like to hear ideas and other interpretations. The sky is not falling yet, but it could very soon.

--The Black Sheep

Vision Award??

Hello All,

I recently received the following e-mail. I would like to get your opinions. I have enlarged and bolded the line that the writer takes the most offense to (bottom of the e-mail), and I have removed the address of the event from the e-mail.

__________________________________________________________________

This is utterly ridiculous. I received an email today from the Philly Bar Associaton about their annual Young Lawyer Division meeting where they're giving out awards. Naturally the awards are to BigLaw associates, but curiously, one award the "YLD Vision Award" is being giving to Dechert. This is infuriating since so many young lawyers were treated like slaves and dirt and then laid off immediately during the 2007 Vioxx implosion/settlement. The criteria for this award are not found anywhere online, and I wonder how shitting on so many young lawyers is the equivalent of "Vision."

Young Lawyers Division

Annual Meeting and Reception

Tuesday, March 25, 2008

$35.00

Includes open bar and heavy hors d’oeuvres

Welcoming Incoming Chair

Scott P. Sigman

Bochetto & Lentz

Presenting the

F. Sean Peretta Service Award to Maria Feeley, Pepper Hamilton, LLP

Craig M. Perry Community Service Award to DaQuana Carter, Pepper Hamilton, LLP

And the YLD Vision Award to Dechert
________________________________________________

I have my own opinions on the matter, but I will leave this one for your comments.

Please keep reading as there are 2 other recent posts. One on Libel and one on Paralegal jobs.

--The Black Sheep

Paralegals, and other non-lawyers do matter.

Hey everyone,

My website does focus on the contract attorney, but today I am taking a slight departure for a couple of reasons.

First and foremost, we are not the only ones that work on many of these projects. In fact, a lot of Paralegals are hired as contractors on many of these projects. There is also the technical staff as well as at times legal secretaries and other administrative staff. Many of them have to work under the same conditions that we do, and might get comparatively the same treatment from associates on these projects.

Second, there are many law school graduates that either delay in taking the bar or do not pass it the first time around. Technically, these graduates are not yet attorneys, and though some reviews do not require a license to practice, many will not hire unless you are licensed in some state. These graduates often need to find work somewhere.

Third, I have had a few requests such as this one:

"Can anybody please provide information regarding
which document review projects in the Philly area
use any paralegals on their projects and which
agencies handle staffing on those projects?"
--William X

So, I thought we could try to use this post to help paralegals, non-licensed grads, and other administrative staffers. Are there jobs out there for people in these types of positions? Where should they look?

Keep reading below for a posting relating to libel issues.

--The Black Sheep

Libel, Free Expression, Performance Evaluation??

Sorry I haven't posted in a couple of weeks, but I have been debating how to best deal with the e-mail described in this post. I have decided that this post will probably be enough of a response to the person that sent the e-mail.

I was recently contacted by an attorney that works for a major firm. This attorney (staff or associate) was clearly one who was upset by a characterization of him/her on this website. S/He felt that the use of full names accompanied by a negative review constitutes “libel.” S/He felt that I should remove the names of any Associate or Staff Attorney in the comments section of the blog because s/he felt that “dragging their names through the mud” in a public forum is wrong and could harm their reputations. This attorney goes on to threaten that further action will be taken if such “libelous” behavior continues. While asking me to do this, this attorney also stated that s/he respects the rights of everyone to express their own opinions. I would like to post the entire e-mail, however, the attorney did not give me permission to do that. If the person writes in again to give me that permission, I would be more than happy to do this so that his/her full message can be clearly heard on this blog.

I realize that libel issues have been discussed extensively on other blogs, though this will be the first time here. So please, indulge me.

My sense is that all of the comments that have been made have been opinions that are based the commenter’s experiences, and therefore not libel under most legal uses of that term. Unless I am mistaken the First Amendment protects our rights to freely express ourselves and our opinions. Opinions in and of themselves are not false or incorrect; therefore I believe that no libel has been committed. Please provide your own analyses as you see fit.

Incidentally this brings up another issue for contractors. Even if you love contracting, there is no system to complain about the job that your supervisors are doing. Your Staff Attorneys and Associates are evaluated for further work based on their production, and their relationship with the associates and partners with whom they work, not on their relationship with some of the people that they work with most extensively, the contract attorneys. What this has led to at some firms (and it can clearly be seen in NYC) is that the Associates and Staff Attorneys treat the contractors like 5 year olds or like they are nothing.

Many law firms have review procedures for their associates and partners, it is what helps them to determine who should move up the partnership ladder, and who they will have to let go. Any mid or upper level associate or partner can tell you that they are evaluated from both above and below, and usually by anonymous evaluations. Some firms even go so far as to solicit the opinions of paralegals, secretaries, and other administrative staff as to how an attorney is doing. Contractors, however, do not get a say in the evaluation of Staff Attorneys and Associates, and these are the people that Staff Attorneys and some younger associates spend the most time with.

So, to the Staff Attorney/Associate that wrote me this e-mail, consider comments that you do not like as informal performance evaluations from your subordinates. Yes, you will always get a few people who are disgruntled, but with some of the rules that I have put in place, I am hoping for some fairer assessments.

There are a couple of more posts that I am planning to do in the next couple of days. I will be reaching into the mailbag for some topics, and I hope to get a post up about what the Supreme Court has been doing lately (Drug and Medical Device cases) which might reduce the need for contractor work. I also hope to get another union post up soon.

Until then fellow contractors and sheep,
Yours,
The Black Sheep