Johnson & Johnson has adopted a quick-settlement strategy for a spate of lawsuits charging that its Ortho Evra contraceptive patch causes blood clots due to heightened estrogen levels.
Some suits have already been ended with confidential settlements, and the company has told plaintiffs lawyers it is ready to cut deals in remaining ones.
The suits charge that patch users, mostly in their teens and 20s, suffered heart attacks, strokes and even death. The product was introduced in 2002 and remains on the market, but reports of injuries prompted the Food and Drug Administration last November to order stronger wording for its warning label.
At a May 2 status conference with U.S. District Judge David Katz in Cleveland, where 73 cases from around the country have been consolidated, a Johnson & Johnson lawyer announced that the company is prepared to settle all suits in which plaintiffs were hospitalized for stroke, heart attacks, pulmonary embolisms or deep vein thrombosis. The lawyer, Robert Tucker, of Cleveland’s Tucker, Ellis & West, did not return calls for comment.
The same day, Johnson & Johnson lawyer Susan Sharko wrote to Superior Court Judge Peter Bariso in Hudson County that the company had reached confidential settlements with 11 of the 12 plaintiffs who sued there. Sharko, of Drinker Biddle & Reath in Florham Park, N.J., did not return a call.
Plaintiffs lawyers are buoyed. “It’s unusual for a defendant, at this early stage of a litigation, to come forward and discuss settlement… . I think this is their way of putting this issue to bed,” says Ellen Relkin, of Weitz & Luxenberg in South Orange, N.J., who is a member of the plaintiffs’ executive committee for the federal suit,
In re Ortho Evra Products Liability Litigation, 1:06cv40000. Relkin says Johnson & Johnson lawyers are not yet negotiating with individual plaintiffs, as the parties are working to develop a uniform interrogatory to allow evaluation of each case. But she estimates that “many of these cases are seven figures, many are probably substantial six-figure cases.”
Plaintiffs lawyers paint Johnson & Johnson’s quick-settle strategy in sharp contrast with Merck & Co.’s no-settle campaign in the litigation over Vioxx. Merck lawyers have tried to pin plaintiffs’ woes on existing health problems, whereas patch plaintiffs are relatively young and healthy. “It’s not like a Vioxx, where you have clients in their 50s, 60s, 70s,” says David Eisenbrouch, of Balkin & Eisenbrouch in Hackensack, who represents plaintiffs in federal court. “You’re dealing with primarily very young women, and J&J would rather cut its losses.”
A Johnson & Johnson spokeswoman, Julie Keenan, said the company would not comment on the status of litigation.
The state Supreme Court last December declined to designate the litigation as a mass tort.