November 2010

The editorial below discusses the $1 billion dollar verdict against drug companies Teva and Baxter. 

Said one lawyer requesting anonymity, “The defense counsel will get absolutely railroaded by Judge Walsh, and when I say railroaded, I mean prison raped.”

Those of us out here in the cheap seats were under the impression hepatitis was spread through previously used needles and Desai and/or his managers ordered employees to re-use needles as a way of saving money. The jury wasn’t allowed to hear such allegations during the first trial. Walsh said the defendants were not allowed to tell the jury Desai’s staffers had ignored the warnings on the Propofol vials. They were also denied the chance to argue the warnings on the vials had been approved by the FDA. They were not allowed to argue there was serious misconduct on the part of doctors or nurses. Nor were they allowed to show there were other ways hepatitis could have been spread. (Emphasis added.)

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As described in legal documents filed with the Supreme Court, Desai’s clinics routinely ignored the most basic protocols for sanitizing instruments. They used “filthy endoscopes and accessories without proper disinfection” and they systematically cross contaminated all of these instruments by dropping them into a “primordial soup filled with human blood, feces, and tissue.”

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However, because Desai and his insurance carrier don’t have deep enough pockets, defendants are going after the two drug companies, and they are being aided by hometown rulings that have so far gutted any chance the out-of-town guys have to defend themselves.

Source: Jurors don’t know the whole truth : Knappster :: Las Vegas CityLife

I don’t make a lot of friends among the plaintiffs’ bar this way, but I have to agree that this is just a case of a crafty lawyer looking for a deep pocket.  If the allegations against Desai are true, then NO WARNING on the drug bottles would have prevented this tragedy.  Or, put another way, the warning or lack thereof did not proximately cause these injuries.

It’s hard for me to defend my brothers and sisters in the bar when they argue that a jury shouldn’t learn the pertinent facts about the cause of an injury.  Bad lawyering makes bad law, and there could be some serious repercussions as a result of this case – especially now that Republicans (who hate plaintiffs) run the House.  It’s not hard to imagine an enterprising Congressman using this case as an excuse to pass a bill that will “prison rape” injured citizens in the future.

A little late, but better than never.  Especially since the Solicitor General agrees that failure to warn lawsuits against generic manufacturers are not preempted by the FDCA:

The court of appeals correctly rejected petitioners’ contention that respondent’s failure-to-warn claims are categorically preempted by the FDCA, and its decision is consistent with the decision of the only other court of appeals to address the question since Wyeth v. Levine, 129 S. Ct. 1187, 1196 (2009).

This issue will eventually wind its way up to the Supreme Court, but I’m going to guess that it will not be in this case.  (This case was a Reglan lawsuit in which a woman took metoclopramide, which is the generic version of Reglan.)

For your convenience, here is a copy of the Solicitor General’s brief.