On the Pulse...Medical Device & Pharmaceutical Practice Group

To be a superior defender of drug and medical device liability cases requires a complement of lawyers and paralegals with medical, technical and scientific experience and proficiency, and damn good trial skills.

Fortunately, Marshall Dennehey has an abundance of talent in this area. We have attorneys who hold leadership positions in national product liability professional and industry organizations, such as Eric A. Weiss, Esquire, practice group co-chair. Eric also co-chairs the firm's Product Liability Practice Group. He has over 30 years of legal experience and for two years served as the Products Liability Section Chair of the Federation of Defense and Corporate Counsel ("FDCC"). He has successfully defended against efforts to establish a drug mass tort MDL, and he has also defended over 60 stroke, sudden death and myocardial infarction cases in the Ephedra MDL, partnering with me as co-chair of this practice group. My background includes over 30 years of defending healthcare providers in medical malpractice litigation, amassing a wealth of medical knowledge (particularly in perinatal and catastrophic injury cases) and expert witness contacts, plus over 200 major jury trials, many involving catastrophic injuries, with a defense verdict rate around 95%. Other members of the group have experience in former lives as nurses, and one is a physician-consultant. Dave Krolikowski, Esquire, who works closely with me, was a pharmaceutical researcher for over 10 years and is admitted to the U.S. Patent Bar.

As needed, we draw upon other attorneys in our regional offices, not only for local insight, but also for their expertise in such matters as insurance coverage, employment law and intellectual property law. As a result, there are few lawsuits against a drug or medical device manufacturer which we would not be comfortable handling.

Our geographical reach is broad and is not limited to the jurisdictions in which we maintain offices. In the Ephedra MDL, we traveled all over the country, meeting with world class experts and conducting or defending depositions of experts, and we presented the Defense Coordinating Committee's generic causation expert on cardiac electrophysiology during two weeks of Daubert hearings in the United States District Court in the Southern District of New York. On the drug side, we have represented manufacturers, component part or raw product suppliers, distributors, retail pharmacies and compounding pharmacies. On the device side, we have handled cases involving implants, prostheses, hospital equipment (from beds to very sophisticated critical care devices), pedicle screws and out-patient or home care drug delivery devices, such as insulin pumps and oxygen concentrators. We have advised new insurers on insuring agreements and exclusions relating to patent coverage for drug companies, an esoteric field, to be sure.

Almost every case involving an alleged injury from a drug or medical device not only raises scientific questions about the product, but also a myriad of questions about alternate causes, background rates, life expectancy with or without the injury and often also future medical care needs. This is where our depth of experience in medical litigation really pays off. It permits us, for example, to show why the "overdose" of an antibiotic or blood thinner, due to an alleged pharmacy error, was not the cause of a premature newborn's morbidity. It permits us to show why a hypertensive, diabetic home dialysis patient with poor sterile technique who had previously been treated with antibiotics (and resultant fungal overgrowth) did not acquire his fungal peritonitis from a contaminated product, but rather was destined to be part of the "background rate" for these infections. It permits us to show, when a harmonic scalpel or electrocautery devices malfunctions, that the patient's chance of being alive in five years, despite his cancer even without the complication, was less than 15 percent.

Sometimes, we are called upon to serve a limited purpose. In one toxic tort case involving a drug alleged to have caused the death of a young mother of three, a national firm widely recognized for its expertise in this area hired us to serve as local counsel but also to conduct the depositions of all treating physicians, not only to rebut causation, but to seek and find alternate explanations for the death, and to line up expert testimony in support of an alternate cause and to help select the right mediator to get a satisfactory resolution. We also have a good bit of experience in mass tort mediations.

Because our firm represents so many companies at the request of insurance carriers and TPAs, our rate structure, quality assurance and litigation guideline compliance programs permit very substantial differentials from the traditional "big firm" billing approach without sacrificing results. We have litigated side by side with the best in the business, and while we admire and respect them, we know that we can produce the same results for a lot less cost. More than one of our major insurance company clients has collected the data regarding fees, cycle time and, most importantly, outcomes, and "it don't lie."

The national insurers who utilize our services know what we can do. As economic pressures force drug and device manufacturers, who are either self-insured or have a high SIR, to reconsider their litigation budgets, they might consider, rather than settling defensible cases to avoid costs, using our firm to achieve superior litigation results at significant cost savings.

* Steve, a shareholder who works in our King of Prussia, Pennsylvania, office, can be reached at (610) 354-8250 or saryan@mdwcg.com.

Defense Digest, Vol. 16, No. 3, September 2010