O'Bannon Trial Expected to End Today

After three full weeks of trial, the Ed O’Bannon anti-trust lawsuit against the NCAA will come to a close. The Plaintiffs withdrew their jury demand before trial and so the lone decider of fact and law will be U.S. District Judge Claudia Wilken. It is expected that she will issue a written opinion towards the beginning of August.

The case has been heavily covered by the media. ESPN had their own reporter tweeting from inside the courtroom for the entire length of the trial. Over the course of the proceedings, Judge Wilken will have heard 23 witnesses, including: Ed O’Bannon, Tyrone Prothro and one other former athlete; Mark Emmert, the president of the NCAA; the women’s athletic director for the University of Texas, a couple of conference commissioners and a slew of economic experts.

At the heart of the matter are the rights of “student-athletes” to their name, image and likeness. They want Judge Wilken to issue an injunction that would prohibit the NCAA from prohibiting them from receiving compensation for these rights. This would allow the players to enter the marketplace to negotiate payment over television broadcasts, jersey sales, and other economic rights.

The NCAA on the other hand, is arguing that amateurism is a fundamental good that makes the ban on allowing “student-athletes” to profit from their name, image and likeness, pro-competitive.

Is this the end of the NCAA as we know it? We will have to wait until Judge Wilken’s decision. Even then, the NCAA has promised to appeal any decision that is not in their favor to the United States Supreme Court, which could take years.

FDA Issues New Warning For Low T Products

The U.S. Food and Drug Administration last week announced it is requiring testosterone drug manufacturers to include a wider warning about the increased risk of blood clots in the veins.

The FDA previously had warned that such clots could occur in certain patients who developed an abnormal increase in the number of red blood cells, a condition called polycythemia, but the agency has recently received numerous reports of such clots occurring in those who are not afflicted with this complication. Blood clots in the veins include deep vein thrombosis (DVT) and pulmonary embolism, a potentially life-threatening event that occurs when a clot travels to the lungs.

Testosterone products are approved for use in men who have low levels of the hormone due to medical conditions such as testicular failure, previous use of chemotherapy, or a problem with the pituitary gland. Men with low testosterone levels may have symptoms such as low sex drive, depression, fatigue and muscle weakness.

Earlier this year, the FDA announced that it was reviewing the latest research to determine whether these “Low T” products posed an unacceptable increase in the risk of strokes, heart attacks, and death in men who used them. The new warning is not related to this ongoing investigation.

Testosterone therapy products have been heavily advertised on television and other medium. Products on the market or about to be launched include AbbVie Inc's AndroGel, Endo International Plc's Aveed and Trimel Pharmaceuticals Corp's Natesto. Therapy is typically given in gel, patch or injection form. It has been reported that sales of AndroGel exceeded sales of Viagra in 2013.

"Low T" litigation has been consolidated into an MDL in the Northern District of Illinois.

Pittman, Dutton & Hellums, P.C. is currently investigating Low T Therapy claims. If you or a loved one were prescribed testosterone therapy and were injured as a result, please contact Booth Samuels at 1-866-515-8880 or by email at booths@pittmandutton.com.

Judge Finds Actos Manufacturer Intentionally Destroyed Documents

U.S. District Judge Rebecca Doherty said Friday that Takeda Pharmaceuticals Co. Ltd., intentionally destroyed evidence that would have helped the Plaintiffs in a $9 billion bellwether lawsuit over claims the company hid the cancer risks of the diabetes drug Actos to keep sales high.

The ruling follows Plaintiffs Terrence and Susan Allen’s April victory in the first federal jury decision in multidistrict litigation (MDL) against Asia’s largest drug company and its American partner, Eli Lilly & Co. For more information on the trial, see my previous blog posts.

Judge Doherty, who had previously addressed Takeda’s conduct, said Takeda breached its obligation to preserve certain information related to the Plaintiffs’ suit. She stated that the intentionally destroyed documents were both relevant to the case, and their absence was prejudicial to the Plaintiffs.

The decision only impacts Takeda, and not Ely Lilly. She also deferred making any findings about attorney misconduct until a later date. Judge Doherty also denied the Plaintiffs Steering Committee request to issue a default judgment against Takeda.

She did however order Takeda to continue to attempt to reconstruct all the deleted files. Until that process is done, the Judge stated she will defer making a determination of attorneys’ fees. But she did allow the PSC to file a request to shift to Takeda all costs, including attorneys’ fees, related to third-party discovery that would not have been conducted except for Takeda’s bad-faith conduct.

According to the original complaint, the Plaintiffs alleged that even before Takeda applied for approval from the FDA, it knew from the results of animal testing that Actos could cause bladder cancer. Later, in the early 2000s, clinical trials in humans had shown it would induce the cancer, the suit said.

Thousands of lawsuits were filed over the drug’s allegedly carcinogenic side effects, prompting more than 6,000 of them to be transferred to the MDL in the Western District of Louisiana.

Pittman, Dutton & Hellums, P.C. is currently investigating Actos claims. If you or a loved one were prescribed Actos and thereafter were diagnosed with cancer, please contact Booth Samuels toll free at 1-866-515-8880 or by email at booths@pittmandutton.com.

Bellwether Fosamax Case Tossed From MDL

New Jersey U.S. District Judge Joel A. Pisano on Tuesday dismissed a suit brought against Merck & Co. Inc., in multidistrict litigation accusing the company of negligence over femur fractures allegedly caused by its osteoporosis drug Fosamax, finding the failure to warn claims fail because the drug's label is clear and accurate.

Judge Pisano granted Merck’s summary judgment motion on grounds that Plaintiff Barbara Gaynor’s claims fail because she took the drug after Merck revised its labeling in 2010 to fully convey the potential for fractures, and she did not set forth sufficient evidence that Merck did not give her doctor adequate notice.

The ruling comes a year after a defense verdict in another Fosamax suit, brought by a user of the drug before the labeling change. Following that decision, in Glynn v. Merck, Pisano dismissed roughly 650 similar cases. An appeal of the Glynn ruling on preemption is pending before the U.S. Court of Appeals for the Third Circuit. For more information on those topics, see my previous blog posts.

Another 215 cases pending in the MDL were brought by users of the drug after the label change.

It is expected that Judge Pisano will issue a show cause order as to why those cases should not be dismissed in light of the Gaynor ruling.

Gaynor, of Hicksville, New York, took Fosamax from 1996 until she fractured her right femur in September 2011. She claimed her long-term use of the drug made the relabeling immaterial, saying, “Merck has submitted no evidence that Mrs. Gaynor’s use of Fosamax in 2011 was a substantial factor in causing her femur fracture.”

Judge Pisano reasoned that that argument confused the proper analysis of a failure-to-warn claim by expecting that Merck first prove that no issue of fact concerning proximate cause existed.

Pisano called Gaynor’s contention that Merck should be liable for failing to warn of Fosamax’s dangers in the late 1990s and the early 2000s “baffling,” because he had ruled in Glynn that such claims are preempted. Merck maintained that it had sought FDA approval of a stronger warning but it was rejected.

Pisano wrote that Gaynor “re-characterized” her suit’s claim that Merck’s warnings about the side effects of Fosamax were inadequate when she later contended that the court should not decide that claim because it was not a proximate cause of her injury. He reasoned that she “cannot have it both ways.”

Merck has been named in 4,430 suits claiming Fosamax caused femur fractures. Of those, 2,785 are in state court in New Jersey, pending before Superior Court Judge Carol Higbee. Another 525 femur cases were filed in state court in California, and 1,120 went to the MDL.

There are approximately 1,150 suits pending over claims that Fosamax causes osteonecrosis of the jawbone. Many of those claims have settled.

US Supreme Court Rejects BP's Appeal

The United States Supreme Court last week rejected British Petroleum's (BP) plea to halt payments under the settlement agreement. BP had appealed District Court Judge Barbier's findings to the Fifth Circuit Court of Appeals. The Fifth Circuit issued a ruling rejecting BP's argument that the settlement agreement was unfair and would dole out billions to businesses whose claims were unrelated to the oil spill disaster. BP then appealed the Fifth Circuit's ruling to the Supreme Court, who refused to hear the matter.

This is a huge victory for all of those businesses that were affected by the tragic environmental disaster. BP has tried to do everything it could do to get out of the deal that their lawyers and hired CPA firms reviewed and advised to sign.

Low T Cases Consolidated Into MDL

The U.S. Judicial Panel on Multidistrict Litigation (JPML) has ordered all product liability lawsuits filed in U.S. District Courts nationwide involving injuries associated with the use of any testosterone replacement therapy (TRT) to be centralized before one judge in the Northern District of Illinois as part of an MDL, or multidistrict litigation.

Following oral arguments late last month in Dallas, Texas, the JPML issued an order on June 6, which transfers cases involving any “Low T” drugs to U.S. District Judge Matthew F. Kennelly for coordinated handling during pretrial proceedings.

Testosterone is a hormone that promotes the growth of the male reproductive system, contributes to proper sexual function, boosts libido, prevents loss of scalp hair and can reduce the accumulation of abdominal fat.Treatment is often prescribed to men in order to counteract the age-related decline in the hormone. It helps improve sex drive, bone density and muscle mass. But the benefits and risks of the long-term use of testosterone therapy are not well known. Testosterone therapy is most often administered as a gel, patch or injection.

There are approximately 45 filed Low T lawsuits in Federal districts throughout the country. Major side effects claimed in these lawsuits include stroke, heart attack or even death. Use of the medication has been linked to certain other risks, including heart problems, sleep apnea, high red blood cell production, skin reactions, breast enlargement and lower sperm production.

The following products treat low testosterone:

• Androgel
• Androderm
• Axirom
• Bio-T-Gel
• Delatestryl
• Depo-Testosterone
• Fortesta
• Striant
• Testim
• Testopel

The U.S. Food and Drug Administration (FDA) is investigating the risk of stroke, heart attack, and death in men taking FDA-approved testosterone products. It has been monitoring this risk and decided to reassess this safety issue based on the recent publication of two separate studies that each suggested an increased risk of cardiovascular events among groups of men prescribed testosterone therapy.

Pittman, Dutton & Hellums, P.C., is currently investigating Low T Therapy claims. If you or a loved one were prescribed testosterone therapy and were injured as a result, please contact Booth Samuels at 1-866-515-8880 or by email at booths@pittmandutton.com.

O'Bannon Trial Started Today

The Ed O'Bannon class action lawsuit against the NCAA started this morning in Oakland, California. Mr. O'Bannon took the stand earlier today. 

The trial was originally slated to be a jury trial, but the Plaintiffs withdrew their request and Judge Wilken is now presiding over a bench trial. The Plaintiffs also withdrew their individual damages claims. 

The case was also paired with a similar class action suit brought by Sam Keller. That case was bifurcated and was slated to go to trial in February 2015, but in an announcement made in Court this morning before trial, that case has settled. The NCAA settled that lawsuit for a reported $20 million and will go towards student athletes who appeared in EA Sports video games. This on top of the previous settlement with EA for $40 million.

For more on the trial, click on the below links:

http://bigstory.ap.org/article/obannon-takes-stand-landmark-ncaa-lawsuit

http://www.usatoday.com/story/sports/college/2014/06/09/anti-trust-lawsuit-ed-obannon-against-the-ncaa/10226241/