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THE LITIGATION DEPARTMENT
U.S. Product Liability Law
e-Newsletter
PLL #13 - 6/3/2004
Product Liability Update #13 - Good Mississippi Justice; Ethical Marketing
WIGGIN AND D ANA
Counsellors at Law
For more information on
U.S. product liability law
please contact:
Remy Zimmermann
+1 203.498.4316
[email protected]
Shaun Sullivan
+1 203.498.4315
[email protected]
Alan Schwartz
+1 203.498.4332
[email protected]
or visit us at
www.wiggin.com
Happy Summer (almost)!
On a chilly, windy day in the northeastern United States, I thought I'd try
to warm things up by telling you about two interesting court decisions
which reached my desk recently. (1) In a decision which should gladden
the hearts of mass tort defendants, the Mississippi Supreme Court threw
out a $100,000,000 jury verdict against Johnson & Johnson because of the
improper joinder of ten plaintiffs; and (2) a New York federal judge overseeing multi-district litigation against drug manufacturer Warner-Lambert
refused to allow plaintiffs' expert scientists to testify concerning ethical
standards in marketing.
The Mississippi case involved Propulsid, a prescription medication used to
treat gastroesophageal reflux disease. The plaintiffs ranged in age from
three to seventy-nine; they complained that ingestion of Propulsid caused a
wide variety of injuries including stroke, chest pain, congestive heart failure, fast heartbeats and slow heartbeats; they alleged medical expenses
ranging from zero to $100,116. After a four week trial the jury took only
two hours to award each plaintiff $10,000,000. The Mississippi Supreme
Court found improper joinder of plaintiffs and quoted an earlier decision
stating, "the prescribing of the drug Propulsid by ... different physicians to
... different patients did not arise out of the same transaction, occurrence,
or series of transactions or occurrences, and ... joinder in this case unfairly
prejudices the defendants." The court added, "The plaintiffs were prescribed Propulsid ... in different amounts for different ailments ... at different times, thus falling under different labels and different warnings. The
plaintiffs also presented ten unique medical histories."
Although Mississippi has a well-deserved reputation for being a difficult
trial court venue for an out-of-state manufacturer, the common sense
approach which the Mississippi Supreme Court has taken in this case is not
unique. Several Supreme Court decisions in recent years indicate that good
Mississippi justice is at least available in the state's highest court.
In New York U.S. District Court Judge Lewis Kaplan felt that plaintiffs
suing manufacturers of the diabetes drug Rezulin were going too far when
they offered expert witness testimony as to whether the defendants' marketing practices were ethical: "the opinions of plaintiffs' witnesses, however
continued
©2004 Wiggin and Dana llp
THE LITIGATION DEPARTMENT
PLL #13 - 6/3/2004
Product Liability Update #13 - Good Mississippi Justice: Ethical Marketing
WIG GIN AND DANA
Counsellors at Law
distinguished these individuals may be as physicians and scientists, concerning the ethical obligations of pharmaceutical companies ..., are inadmissible." Judge Kaplan noted that "the principle issues" were "whether the
defendants breached their legal duties in manufacturing, labeling and marketing of Rezulin .... "He commented, "While the defendants may be
liable in the court of public opinion or before a divine authority for any
ethical lapses, expert opinion as to the ethical character of their actions
simply is not relevant to these lawsuits."
Hope this is helpful. As always, let me know if you have questions or comments.
Best regards.
Remy
The Wiggin and Dana U.S. Product Liability Law E-Newsletter is a periodic newsletter designed to
inform clients and others about recent developments in the field of product liability law. Nothing in the
E-Newsletter constitutes legal advice, which can only be obtained as a result of personal consultation with
an attorney. The information published here is believed to be accurate at the time of publication, but is
subject to change and does not purport to be a complete statement of all relevant issues. If you have any
requests for topics or other suggestions, please contact Remy Zimmermann 203.498.4316,
[email protected].
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