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Ortho Evra Patch Maker Johnson & Johnson Waves A White Flag

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On May 2, 2006, Johnson & Johnson attorney, Susan Sharko, wrote to New Jersey Superior Court Judge, Peter Bariso, to inform the court that the company had reached confidential settlements with 11 of the 12 plaintiffs involved in litigation in New Jersey.

Less than a month earlier, on April 9, 2006, the New York Post reported that women who suffered life-threatening blood clots and strokes on the Ortho-Evra birth-control patch were already receiving cash settlements from the manufacturer.

"Ortho-McNeil Pharmaceutical," the Post wrote, "a subsidiary of Johnson & Johnson, has settled a dozen lawsuits for millions of dollars in the last few months, and more than 100 other suits are pending."

With J&J waving a white flag this early in the game, the litigation period involving the Ortho Evra birth control patch may go down in history as being the shortest ever against a drug company.

However, many more cases are pending in other federal and state courts. On March 1, the Judicial Panel on Multidistrict Litigation issued a transfer order and appointed a federal judge in Ohio to oversee the consolidated pretrial proceedings of 13 federal products liability suits filed by plaintiffs in different states over the Ortho Evra patch.

The JPML assigned the 13 cases to US District Judge David Katz of the Northern District of Ohio, who was already handling the first federal lawsuit over the Ortho patch.


That case, Bernard v Ortho-McNeil Pharmaceuticals, is "progressing well," the Panel said, and the Ohio venue would provide a relatively central situs in regard to the geographic dispersal of the constituents and tag-along cases..

As of March 1, 2006, the Panel said it had been notified of 54 potentially related actions pending in the multiple federal districts and said, these actions will be treated as potential tag-along actions.

The Panel noted "that the actions in this litigation involve common questions of fact, and that centralization in the Northern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation."

"Among other things," the Panel wrote, "these action share allegations that i) the Ortho Evra contraceptive patch was defectively designed, and ii) plaintiffs received inadequate warnings regarding Ortho Evra's side effects and safety profile."

"All actions seek damages for personal injury and/or economic damages on behalf of users of Ortho Evra," the Panel wrote, "asserting various state law claims, such as negligence, products liability, breach of warranties, and negligence and/or fraudulent misrepresentation regarding the risks of using Ortho Evra."

"Centralization," the Panel said, "is necessary in order to eliminate duplicate discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary."

However a white flag has already been waved at many of the plaintiffs in these cases as well. On May 2, 2006, at the very first status conference held by Judge Katz, Johnson & Johnson attorney, Robert Tucker, stated the company was prepared to settle suits in which plaintiffs were hospitalized for heart attacks, stroke, pulmonary embolisms or deep vein thrombosis, according Charles Toutant, in the May 16, 2006 New Jersey Law Journal.

Ellen Relkin, of Weitz & Luxenberg in South Orange, NJ, a member of the plaintiffs' executive committee for the federal suit, In re Ortho Evra Products Liability Litigation, told the Journal that "many of these cases are seven figures, many are probably substantial six-figure cases."

"It's not like a Vioxx, where you have clients in their 50s, 60s, 70s," explained David Eisenbrouch, of Balkin & Eisenbrouch, who represents plaintiffs. "You're dealing with primarily very young women, and J&J would rather cut its losses," he told the Journal.

Less than 2 weeks later, on May 13, 2006, Bloomberg News reported that J&J has settled lawsuits with about 30 women quoting Attorney, Ray Chester, the lawyer who negotiated the confidential agreements.

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Evelyn Pringle is a columnist for OpEd News and investigative journalist focused on exposing corruption in government and corporate America.
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