Federal and State Courts Deny Daubert and Kemp Motions and Set Stage for Abilify Trials Over Compulsive Behaviors

The United States District Court for the Northern District of Florida’s Chief Judge M. Casey Rodgers has released a redacted version of its January 22, 2018 order denying summary judgment against plaintiffs’ claims that the drug Abilify caused them to engage in compulsive behaviors. The plaintiffs, led on the issue by the national trial firm Robins Kaplan LLP® with significant contributions from other MDL leadership counsel, defeated defendants’ arguments that the cases lacked a credible scientific basis. The federal court denied defendants’ motion to exclude with respect to plaintiffs’ leading experts, finding “most of plaintiffs’ evidence on general causation – including epidemiology (i.e., Etminan Study), background risk, biological plausibility, disproportionality analyses, in vivo and in vitro studies, voluminous case and adverse event reports (including dose-response, dechallenge and recehallenge events), FDA materials, defendants’ investigative findings, and plaintiffs’ experts Bradford-Hill and weight-of-the-evidence analyses – satisfies Rule 702 and Daubert…” The decision clears the way for a bellwether trial against defendants Bristol-Myers Squibb, Otsuka Pharmaceutical Co. and Otsuka America Pharmaceutical Inc., scheduled for June 2018 in Pensacola.

Robins Kaplan also represents approximately 50 plaintiffs in state court in New Jersey before Judge James DeLuca. On January 24, 2018, Judge DeLuca issued an order denying defendants’ Kemp motions. Judge DeLuca found as well that plaintiffs’ experts had a sound scientific basis for their opinions that Abilify causes compulsive gambling and compulsive behaviors. Defendants have sought permission from the appellate court to file an interlocutory appeal of that decision.

“We’re thankful to the courts for their close attention to this case, and look forward to trying these claims before Florida and New Jersey juries beginning in June,” said Tara Sutton, partner and chair of the Mass Tort practice at Robins Kaplan, which serves as lead counsel to the New Jersey plaintiffs.

Plaintiffs in the 700-plus federal court cases and 50-plus New Jersey cases allege that taking Abilify, a treatment for schizophrenia, bipolar disorder, and depression which is also prescribed off-label, led them to engage in compulsive gambling, compulsive shopping, hypersexuality, and binge eating. Robins Kaplan has also been appointed to the leadership team in the federal multidistrict litigation (MDL), which involves nearly 600 plaintiffs.

In the MDL proceeding, Sutton, who was lead counsel in the Daubert hearing, also serves on the Joint Settlement Committee, Gary Wilson serves as co-lead counsel and serves on the Executive Committee, and Munir Meghjee was named Plaintiffs’ Federal/State Liaison counsel.

The New Jersey litigation is Jonathan Yun v. Bristol-Myers Squibb, et al., pending before Judge James J. DeLuca, and the MDL is In re Abilify (Aripiprazole Products Liability Litigation, MDL no. 2734), pending before the Hon. Chief Judge M. Casey Rodgers.

In addition to Sutton, Wilson, and Meghjee, other Robins Kaplan attorneys representing the plaintiffs in these matters include National Women’s Trial Lawyers Association member Rayna KesslerJulie Reynolds Eric Lindenfeld, and Jason DePauw.

Rodgers Daubert decision redacted public version[2][4][1]

Bullet Proof Vest False Claims Act Case Ends in Victory for Whistleblower

police bulletproof vestThe U.S. Department of Justice announced today that Japanese manufacturing company, Toyobo Co., Ltd., agreed to pay $66 million to settle allegations that it conspired to sell defective body armor to American police departments, federal law enforcement agencies and the U.S. military.  The settlement was reached as part of a False Claims Act initiated by a whistleblower, Aaron Westrick, Ph.D.

As required under the False Claims Act, Dr. Westrick will obtain a qui tam whistleblower reward of $5.77 million.  This award is designed to compensate Dr. Westrick for the damages he suffered and to incentivize other whistleblowers with evidence of fraud to report these crimes.

A detailed discussion on the national importance of this case is posted on The Whistleblower Blog.

Dr. Westrick, now employed as a tenured professor at Lake Superior State University in Sault Ste. Marie, Michigan and an active Michigan Deputy Sherriff, issued the following statement:

“I only wanted to stop the sale of unsafe Zylon vests to police officers, federal agents, and members of our Armed Services. I tried to convince my company to stop selling these vests.  They refused. I lost my job and career.  I have no regrets. I would blow the whistle again. The defective Zylon product was taken off the market and Toyobo (along with other companies) were held accountable. 

“I am proud that the United States joined in my False Claims Act case, and aggressively sought justice in this matter.”

In a statement released today by the DOJ, Attorney General Jeff Sessions said: “Bulletproof vests are sometimes what stands between a police officer and death. Selling material for these vests that one knows to be defective is dishonest, and risks the lives of the men and women who serve to protect us. The Department of Justice is committed to the protection of our law enforcement officers, and today’s resolution sends another clear message that we will not tolerate those who put our first responders in harm’s way.”

Stephen M. Kohn, a partner in the law firm of Kohn, Kohn and Colapinto – who served as Dr. Westrick’s lead counsel said: “Dr. Westrick is a true American hero. He lost his job and career in the body armor industry by exposing Zylon safety risks. He provided the crucial documents and testimony justifying the removal of Zylon from the market, and compensation to states and the federal government due to the immoral sale of Zylon vests.

“The False Claims Act is America’s most important tool to fight fraud in government contracting.  It was enacted to protect and reward whistleblowers like Dr. Westrick, who sacrifice for the public interest, save taxpayers millions of dollars, and ensure that products sold to front-line responders are safe.”

Mr. Kohn also serves as the pro bono Executive Director of the National Whistleblower Center.


NTL member files two more opioid lawsuits

Beasley Allen has filed its fourth and fifth lawsuits against opioid manufacturers and distributors on behalf of an Alabama city or county government. The complaints, filed on behalf of Limestone County, Alabama, and the city of Anniston, alleges the marketing of these drugs contributed to the creation of the opioid epidemic, a public health and safety crisis. Responding to the opioid crisis has required Barbour County to sustain economic damages and to continue to bear a significant financial burden. Limestone County is represented by Beasley Allen lawyers Rhon E. Jones, who is head of the firm’s Toxic Torts Section and a member of The National Trial Lawyers, Rick Stratton, Will Sutton and Ryan Kral, along with Athens, Alabama lawyer John M. Plunk.

The City of Anniston is represented by Beasley Allen lawyers Rhon E. Jones, who is head of the firm’s Toxic Torts Section, Rick Stratton, Will Sutton and Ryan Kral, along with Bruce Downey of The Downey Law Firm in Anniston.

In December, Beasley Allen filed two similar lawsuits on behalf of the City of Greenville, Alabama and Houston County, Alabama. In February, Beasley Allen filed additional lawsuits on behalf of Barbour County, Alabama, and Sumner County, Tennessee. The firm also is representing the State of Alabama in its opioid lawsuit against Purdue Pharmaceuticals.

“Opioid abuse has reached epidemic proportions in the United States. We are seeing a huge cost in human lives, and a burdensome financial toll on communities struggling to battle the problem,” Jones said. “Providing city and county resources to battle the opioid crisis causes local governments to take a huge financial hit, draining funds away from other critical government services, and creating an ongoing financial burden.”

“The conduct of these drug makers and distributors is some of the most egregious I’ve ever seen,” said Plunk, who has practiced law in Athens for 40 years, representing victims of fraud, physical injuries and other similar claims. “Communities like ours are struggling to meet the challenges of caring for our citizens, who are the victims of the opioid epidemic and need services ranging from law enforcement assistance to medical care.”

“This crisis was created by the pharmaceutical industry, which clearly put its interests in profit ahead of concerns for public safety,” Downey said. “They misled doctors and the public about the serious risks associated with these drugs, especially the risk of addiction. As a result, communities are left struggling to cope with the consequences.”

Economic damages resulting from the opioid epidemic include costs for providing medical care, therapeutic care and treatments for patients suffering from opioid-related addiction or disease, including overdoses and deaths; costs for providing counseling and rehabilitation services; costs for treating infants born with opioid-related medical conditions; public safety and law enforcement expenses; and care for children whose parents suffer from opioid-related disability or incapacitation.

Four Alabama cities rank in the Top 15 in the nation with the highest rates of opioid abuse – Anniston, Gadsden, Montgomery and Tuscaloosa. Nationally, opioids are responsible for killing more than 183,000 people since 1999, according to the Centers for Disease Control and Prevention (CDC). In 2015 alone, 33,000 people died from opioid overdoses – more than guns, car crashes and HIV/AIDS ever killed in one year in the U.S.

Defendants include Purdue Pharma L.P.; Purdue Pharma, Inc.; The Purdue Frederick Company, Inc.; Teva Pharmaceutical Industries, LTD.; Teva Pharmaceuticals USA, Inc.; Cephalon, Inc.; Johnson & Johnson; Janssen Pharmaceuticals, Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc.; Janssen Pharmaceutical Inc. n/k/a Janssen Pharmaceuticals, Inc.; Noramco, Inc.; Endo Health Solutions Inc.; Endo Pharmaceuticals, Inc.; Allergan PLC f/k/a Actavis PLS; Watson Pharmaceuticals, Inc. n/k/a Actavis, Inc.; Watson Laboratories, Inc.; Actavis, LLC; Actavis Pharm a, Inc. f/k/a Watson Pharma, Inc.; Mallinckrodt plc; Mallinckrodt LLC; McKesson Corporation; Cardinal Health, Inc.; and AmerisourceBergen Drug Corporation.

The complaint is filed in the U.S. District Court for the Northern District of Alabama.

NTL member wins flooding lawsuit against Army Corps of Engineers

Dan BoulwareA federal judge in Washington, D.C. ruled on March 13, 2018 that the U.S. Army Corps of Engineers bears responsibility for causing recurrent flooding and damaging farms and property in four Midwest states along the Missouri River: Missouri, Iowa, Nebraska and Kansas. The ruling states that the government must compensate farmers, landowners and business owners for the flood damage, which has been estimated to exceed $300 million.  The case, Ideker Farms et al v. United States of America, was brought by 372 plaintiffs comprised of farmers, landowners and business owners, and has been led by Polsinelli in partnership with Cohen Milstein Sellers & Toll. National Trial Lawyers member and Polsinelli shareholder Dan Boulware served as lead counsel.

The mass action lawsuit was originally filed on Mar. 5, 2014 and alleged that the U.S. Army Corps of Engineers’ actions have violated the takings clause of the Fifth Amendment that bars the Government from taking private property without just compensation. Judge Nancy B. Firestone with the United States Court of Federal Claims found in favor of the plaintiffs in five of the six years that the flooding was claimed dating back to 2007, disallowing the flood claims in 2011. The Court found that the Corps’ deprioritized flood control in 2004.

Judge Firestone stated in her Trial Opinion that the evidence established that the Corps’ changes to the river “had the effect of raising the Missouri River’s water surface elevations (“WSEs”) in periods of high flows.” She found that since 2007, the flooding has been among the worst in the history of the river and the Corps’ changes in the management of the river caused or contributed to the flooding. Citing the testimony of plaintiffs’ experts, the Court acknowledged that “recurrent flooding in the Missouri River Basin . . . will continue into the future,” and that increased blocked drainage of farm lands due to higher river levels is a problem.

“As a farmer and landowner who has experienced substantial losses from these floods, I’m extremely pleased with this outcome,” said lead plaintiff Roger Ideker of Ideker Farms in St. Joseph, Mo. “It rightfully recognizes the Government’s responsibility for changing the River and subjecting us to more flooding than ever before.”

“Today is the day the plaintiffs have patiently waited for and have fought for during the past four years. Although we do not concur with the Court’s conclusions regarding the 2011 flood event, we are very pleased with the Court’s conclusions regarding the Corps changes to the river causing flooding, and we are certainly pleased with an outcome that will provide substantial compensation to plaintiffs living along the river who have suffered significant flood damage and losses throughout the past decade,” said Boulware. “It should now be clear that we have a changed river – one that is flood prone. We hope the Corps of Engineers will now do the right thing for our clients and that Congress will also act soon to restore flood control to a higher priority as it was during the last century.”

The ruling also addressed the critical shift in the management of the river by the Corps in 2004 to restore its ecosystem and benefit and create habitat for threatened and endangered species. The court found that the notching of dikes and revetments, as well as the reopening of the historic chutes, which allows the river to meander and erode the bank, created potential flood impacts. These changes to the river, coupled with increased reservoir storage and threatened and endangered species releases from the dams during high river stages below the dams, served to cause or contribute to cause flooding in 2007, 2008, 2010, 2013, 2014 and since.

“For nearly a decade, these individuals have suffered not only serious flood damage, but more critically, threats to their fundamental livelihood,” said plaintiffs’ attorney Benjamin Brown, Partner and Co-Chair of the Antitrust Practice Group at Cohen Milstein Sellers & Toll. “Today’s decision reflects what we have been saying since the outset of this litigation – all Americans should share the costs of protecting threatened and endangered species and the entirety of this burden should not be foisted on those who happen to live and work on the river.”

The Ideker Farms, Inc. et al v. United States of America case has two phases. This ruling marks the end of phase one, which began on Mar. 6, 2017, focusing on liability and the cause of the flooding. The trial in the Federal Claims Court began in Kansas City, Mo. before moving to Washington, D.C. It involved 44 plaintiff “bellwether” tracts and more than 90 witness testimonies over the course of the 63-day trial. Closing arguments were held in November and concluded in December. In total, over 100 depositions were taken and in excess of 20 million documents were produced throughout phase one.

The case will next proceed to phase two, where the Court will determine the extent of losses due to the taking.

The plaintiffs are represented by Am Law 100 firm Polsinelli, led by Boulware, who is recognized by his peers as among the top 1 percent of all trial attorneys in the country, Edwin Smith, Seth Wright, Todd Ehlert and Sharon Kennedy. Brown and Laura Alexander of Cohen Milstein Sellers & Toll, one of the nation’s leading plaintiffs’ firm based in Washington, D.C., also supported plaintiffs in this case.

For more information, including historical background, on this case, please visit http://www.missouririverflooding.com.

Potential parents prepare legal action against fertility clinics

A wave of would-be parents is heading to court after a Ohio fertility clinic notified 700 patients last week that their frozen eggs or embryos may have been damaged after a storage tank lost liquid nitrogen that was critical to maintaining the correct temperature. The fertility center at University Hospitals Ahuja Medical Center is the second facility in two weeks to inform patients of a freezing failure. Pacific Fertility Center in San Francisco also suffered a malfunction in a storage tank that held hundreds of frozen embryos and eggs. Attorneys told The Washington Post they’ve been inundated with calls from fertility clinic patients and hope the court will certify a class action.

Days in the Dallas Co. Jail raising money for bail

Dallas County, Texas is being sued over the constitutionality of its bail system by the ACLU, Civil Rights Corps, the Texas Fair Defense Project, the Texas Organizing Project, Faith in Texas, and six plaintiffs. The county’s cash bail system is unconstitutional, they claim in Daves vs. Dallas County, because it forces less affluent people to remain in custody while they raise money for bail. D magazine reports that about 70 percent of the 5,000 people in the Dallas County Jail are there because they can’t afford to post bail. This article has more on what’s it like for the people who have to stay in jail because they don’t have bail money.

Podcast: The addicted lawyer


Krambule’s treatment included sedatives, pain killers and sleep aids, that reached to more than  30 pills per day. As a result, the cocktail of medications “metabolized and accumulated” in Randy Krambule’s body.

Attorney Brian Cuban, the brother of billionaire Mark Cuban, struggled with low self-esteem and depression, which in turn led to substance abuse and the destruction of his legal career. Cuban recalls how his lifelong struggle caused his life to spin out of control in his latest book, The Addicted Lawyer: Tales of the Bar, Booze, Blow & Redemption. In this podcast from The Chicago Bar Association available at Legal Talk Network, Cuban offers advice on how lawyers struggling with the same issues can deal with their substance abuse.

Savannah, Ga. Trial Attorneys Secure Record-Setting $18 Million Medical Malpractice Verdict in Chatham County


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Harris Lowry Manton LLP partner and National Trial Lawyers — Top 100 member Jeffrey R. Harris and associate Yvonne S. Godfrey – along with Owen C. Murphy of Owen Murphy, P.C. and Medical Malpractice Trial Lawyers Association — Top 25 member W. Andrew Bowen of Bowen Painter, LLC – recently set a record with an $18 million verdict from a Chatham County jury on behalf of their client, Joan Simmons.

“The jury in this case recognized that Joan Simmons was tragically, catastrophically injured and that she will be a paraplegic the rest of her life as a result of medical malpractice,” said Jeffrey R. Harris of Harris Lowry Manton LLP. “The jury’s verdict clearly reflected that understanding.”

In 2014, Simmons was admitted to a Savannah hospital because she was experiencing back pain. The 30-year Colonial Oil employee also showed signs of an infection. An infectious disease doctor at Southcoast Medical Group, as well as other healthcare professionals, failed to diagnose and treat her spinal abscess, a serious complication of a spinal infection. The untreated abscess put pressure on Simmons’ spinal cord, causing paralysis in both legs. As a result of their negligence, Simmons was left permanently paraplegic and unable to work.

“Ms. Simmons went into the hospital with severe back pain and left the hospital in a wheelchair, unable to walk because her medical condition was not timely diagnosed or treated,” said Owen C. Murphy of Owen Murphy, P.C.

Within a few hours of closing arguments, the Chatham County jury returned the largest medical malpractice verdict – and the largest personal injury verdict – in the county’s history. The jury ruled in favor of the plaintiff, Joan Simmons, finding that Southcoast Medical Group was liable for failure to diagnose and treat a spinal abscess.

“This was an important case that clearly demonstrated the catastrophic effect of medical malpractice,” said W. Andrew Bowen of Bowen Painter, LLC. “We are grateful that justice was served for our client and that the responsible parties are being held accountable.”

Tracing the history of Citizens United: How corporations became people, too

How did corporations gain the same rights as US citizens under the Fourteenth Amendment? It can be traced all the way back to the 19th century when a “wily legal team” working on behalf of railroad corporation Southern Pacific convinced the Supreme Court that companies should have the same legal benefits of citizenship. The Atlantic has more on how one unethical Justice (the only sitting Justice ever to be arrested and charged with murder), led the nation down the path to making corporations people, too.