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October 10, 2008 3:27 PM

Ortho Evra Settlements Quicken Ahead of SCOTUS Preemption Review

Posted by Brian Baxter

Bloomberg reported on Friday that Johnson & Johnson has paid roughly $68.7 million to settle hundreds of lawsuits filed by women who claim the company's Ortho Evra birth-control patch adversely affected their health.

According to Bloomberg, over 4,000 complaints have been filed in federal and state courts by plaintiffs claiming they've suffered blood clots, heart attacks, and strokes as a result of the high levels of estrogen released by the birth-control patch, which is manufactured by Raritan, N.J.-based J&J subsidiary Ortho-McNeil Pharmaceutical. With the approval of the FDA, J&J voluntarily agreed to strengthen the warning label on the patch several times since its release in 2002.

Susan Sharko, a products liability partner in the Florham Park, N.J., office of Drinker Biddle & Reath, and Robert Tucker, a name partner and medical malpractice lawyer with Cleveland's Tucker Ellis & West, are serving as colead counsel to J&J for nearly 1,300 Ortho Evra cases that have been consolidated in Toledo before U.S. district court judge David Katz.

The New Brunswick, N.J.-based pharmaceutical and medical devices giant is a longtime Drinker Biddle client. Charles Preuss, the managing partner of Drinker Biddle's San Francisco office and a partner in the firm's products liability and mass torts practice group, has also handled Ortho Evra cases filed in California.

In April, The American Lawyer's Julie Triedman reported that Sharko filed a preemption challenge in the Ohio MDL after U.S. Supreme Court hearings addressed the issue of whether FDA approvals can preempt state tort claims. (Sharko declined to comment on the Ortho Evra settlements.)

Bloomberg reports that the pace of settlements has increased as the Supreme Court gets ready to hear more arguments on the issue of preemption this fall. Indeed, a search conducted by The Am Law Daily of federal court dockets in New York, Chicago, San Francisco, Los Angeles, and Ohio confirmed a litany of closed cases.

According to court records outside of the MDL in Ohio, J&J has also tapped lawyers from Bryan Cave, Dechert, Sidley Austin, and Patterson Belknap Webb & Tyler as products liability counsel in Ortho Evra-related litigation. (Patterson Belknap also happens to serve as longtime IP counsel to J&J.)

Bloomberg based the $68.7 million in settlements paid so far by J&J on the size of a "common benefit fund" set up by plaintiffs counsel to streamline suits against the company.

J&J had total revenues of nearly $61 billion in 2007.

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