Emerging Issues Archive

Actos Lawsuit Angles: How Many Can You Come Up With?

May 14th, 2012. By AbiK

If you’ve tried to figure out what’s going on with Actos—and more specifically, Actos lawsuits–you’ve probably found it can get a bit confusing. This drug has more lawsuit angles now than a tetrahedron. So here’s a list of Actos lawsuit angles:

Actos Bladder Cancer Lawsuits

Actos bladder cancer lawsuits are not class action lawsuits. These are lawsuits filed by individuals who allege they now have bladder cancer because of taking Actos to treat their type 2 diabetes.

When there are many individual lawsuits claiming similar injury (i.e., Actos bladder cancer) brought on by the same defendant(s), it’s a mass tort not a class action. The reason for that is because even though all the victims have bladder cancer, each individual case will be different—for example, the extent of harm will be different from one victim to another, and any damages paid needs to reflect that. In a class action lawsuit, everyone in the class receives the same exact damages.

Typically, parts of a mass tort that are in common across all injured parties will be consolidated into what’s called ‘multi-district litigation’ (MDL). Once the common aspects of all the lawsuits have been resolved, any individual lawsuit differences can be addressed.

Actos Class Action Lawsuit

While there is not an Actos class action lawsuit for bladder cancer injury itself, there has been an Actos class action filed that alleges Takeda, the manufacturer of Actos, engaged in wrongful conduct when it designed, manufactured and marketed the drug–because the drug wound up being linked to bladder cancer and getting an FDA warning because of it.

Actos Whistleblower Lawsuit

Moving right along, a former consultant for Takeda, Dr. Helen Ge, came forward in a whistleblower lawsuit stating that Takeda knew about and yet either did not report or underreported cases of both Actos bladder cancer and Actos myocardial infarction (i.e., Actos heart attack).

According the lawsuit, Ge asserted that “Takeda instructed its medical reviewers not to report hundreds of non-hospitalized or non-fatal congestive heart failure cases as ‘serious adverse events and thus avoided its responsibility of accurately analyzing and reporting these hundreds of serious adverse events to the FDA.

Actos Heart Attack Lawsuit

Like the song “One Thing Leads to Another”, the Actos whistleblower lawsuit sheds light on another potential Actos lawsuit angle: myocardial infarction. Initally, in 2007, the FDA placed a warning on Actos (and Avandia) for congenital heart failure. That warning, however, did not include mention of mycardial infarction (i.e., heart attack). Yet, there had been complaints of Actos heart attack, and those complaints more or less hung in limbo. With Dr. Ge stepping forward, however, it would appear that her allegations could spell more lawsuits for Takeda—this time from Actos heart attack victims. If, in fact, Takeda knew that there was an increased risk for myocardial infarction given their own adverse event reports but did not report that risk, the potential for additional Actos lawsuits is there.

And that could perhaps mean a whole other Actos lawsuit…in the form of an Actos class action. After all, remember how Takeda aggressively advertised that it was a “safer” alternative to Avandia once Avandia took the hit for heart side effects? Stay tuned.

Tags: Actos, Actos Bladder Cancer, Actos class action lawsuit, Actos heart attack, Actos Lawsuit, Dr. Ge, Takeda, type 2 diabetes, Whistleblower
Posted in Class Action, Emerging Issues | 9972No Comments »2012-05-14+19%3A50%3A57AbiK

Is ‘Jesus Heals’ False Advertising When He Doesn’t?

May 7th, 2012. By AbiK

Cruising down I-95 a while back there was a billboard that simply said, “Jesus Saves”. No idea who sponsored it, though one would imagine it was a Christian organization of some sort. Regardless, as with most billboards, it was advertising something. In this case, Jesus. The come-on of course being that if you “buy” Jesus, He’ll seal the transaction by saving you (or your soul). But, what if He doesn’t? Is that false advertising?

Well, a recent Australian billboard took things a bit further by saying, “Jesus Heals Cancer” (see picture, photo by Paul Taylor, nzherald). The billboard also reportedly had a tally of those whom Jesus had apparently healed—a total of six cancer survivors. Glory be to God.

However, not everyone was happy with the Jesus Heals billboard—including an Australian family whose 3 year old son is undergoing treatment for leukemia. Their beef? The sign read like a factual statement—not a message of hope, and therefore, it’s misleading—and offensive.

Amen.

And one can only wonder had the 3 year old been old enough to read, how would mommy and daddy be expected to explain why Jesus hadn’t healed him yet? Were they not ‘good enough’ Christians (assuming, of course, that they’re Christians)? Why was he being ostracized from the healthy and the cleansed?

After the Australian Advertising Standards Authority (ASA) received a total of nine such complaints, it launched an investigation into the matter. The result? The ASA deemed that while the sponsor of the ad did not have any intention to offend, it clearly did not display the ‘”due sense of social responsibility required” and therefore breached the code of ethics.’ (nzherald.co.nz)

Unfortunately, most of us know someone who—even with ‘taking the narrow path’ in life—has succumbed to cancer. And most practicing Christians certainly believe that while God is omnipotent, there is only so much He can, or will, do—leaving us mere mortals to find solace in platitudes like “God must have needed him/her in heaven”. What else is there to say, after all?

The billboard in Australia was the work of the Equippers Church—their tagline: “Equipping People for Life through Faith in Jesus Christ”. Here’s an excerpt from one of their web pages (boldface added by author):

Equippers exists to create an environment where young and old of every culture can easily connect and discover the purpose of their existence. We value the different cultures that make up our community, however we also believe in the importance in having the same spirit in all our expressions. We encourage everyone to put the culture of the Kingdom ahead of their own cultural expectations, as we become united in the same purpose, the cause of Christ.

We believe that the Bible is inspired by God—that it is accurate authoritative and applicable to every part of our lives. Our desire is to communicate the message of God’s word without compromise in a relevant, life-giving way.

Draw your own conclusions from the above, but one word comes to mind: fundamentalist. To round out your picture of the Equippers Church, a few applicable keywords might be: Christian contemporary music, missions, ministries, Hallelujah Project, Shout Conference. You get the vibe. Unfortunately, the vibe tends to call for drinking the proverbial kool-aid and encouraging others to partaketh of the cup as well. Even if it means buying a billboard to proselytize the weak into thinking they’ll be ‘healed’.

To their credit, they do practice what they preach and do so with apparent conviction—case in point, here’s an example from Senior Pastor Kathy Monk’s twitter stream:

Choose to do life with Jesus, the other alternative is ridiculous, stupid & deadly…#JustDoIt

Deadly? Stupid?

Wouldn’t that be a nice message for a cancer patient right now—yes, Jesus heals cancer—but wait there’s more!—an addendum that didn’t make it onto the billboard: to NOT follow Jesus is deadly! And guess what? If you don’t follow Him, you’re stupid, too! Christianity at it’s most ‘Christian’ there, right? Thankfully not the Christianity I grew up with (for the record, I’m Christian born and bred.)

So yes, clearer minds prevailed on this one. The sign was apparently updated to read: “Jesus Heals every Sickness & Every Disease – Matthew 4:23″. Which, from a false advertising perspective is just fine. After all, when you’re trying to promote what’s in essence a best-selling book and its book club, what better to use than a pull quote?

Tags: Consumer Fraud, Equippers Australia, Equippers Church, false advertising, Jesus Heals Billboard
Posted in Consumer Fraud, Emerging Issues | 99421 Comment »2012-05-07+13%3A35%3A39AbiK

CarFax Consumer Fraud? You be the Judge

May 3rd, 2012. By AbiK

This kind of thing can really tick a person off—when a website does a bait and switch with you. Check out CarFax—the ‘vehicle history reports’ website. Folks go to CarFax with pretty much one purpose in mind—to look up a car’s VIN number (the Vehicle Identification Number) in order to find out the car’s repair history—or what problems that particular car might have. Here’s the CarFax homepage:

You’ll note—how can you not?—the khaki-clad Car Fox inviting you to do a “Free Vehicle Search”. Talk about a wolf (ok, a fox) in sheep’s clothing. No asterisks. No disclaimers. Just a couple of fields that you can input either a car’s VIN number or the license plate number and state where it’s registered and…bingo!…you should get some car info. For free, right?

No, not right. Here’s what you get on the next screen:

Want any actual information about the car—it’ll cost you $34.99. See it’s a “vehicle” search—not a “vehicle information” search.

Now, I knew this already—trying to get a vehicle history report online for free is like trying to get blood from a stone. But at least on sites like Vin Central you get a portion of the history report and then there is a fee if you want the whole report. The key, however, is that Vin Central never says or implies upfront that you’ll get anything for free. So with Vin Central, you at least feel that the company hasn’t tried to bamboozle you.

But CarFax? When it looks like a duck and it walks like a duck…and this duck looks and walks like false advertising. And sadly, just a quick search on LawyersandSettlements.com shows that CarFax false advertising complaints are not new.

If you scroll to the very bottom of the CarFax homepage, to the list of links there, you’ll see “FREE SERVICES”. And yes, you can find out whether a car has been identified as a lemon or not. For free. You can also conduct a CarFax “Record Check”—which, ironically, is basically the same thing as the “Free Vehicle Search” above—you get a “search” but no “search results“. The Record Check tells you how many records have been found and then if you want to actually see those records, well, you need to hand over that $34.99. But at least you know you were only supposed to get a record check—not necessarily the records AND the information found in those records.

So is this CarFax consumer fraud? It certainly looks like a bait and switch to me, but you be the judge.

Tags: Bait and Switch, CarFax, CarFax.com, Consumer Fraud, false advertising, Vin Central, VIN history, VIN search
Posted in Automotive, Consumer Fraud, Emerging Issues | 9921No Comments »2012-05-03+18%3A43%3A10AbiK

Publix Unpaid Overtime Class Action: What is Chinese Overtime?

May 1st, 2012. By AbiK

Chinese what? Ok, you’ve probably heard of Chinese water torture. And Chinese New Year. And Chinese take-out (personal fave). But Chinese Overtime?

Yes, Chinese Overtime. If you’re in a job in which the work hours tend to fluctuate each week and you get overtime pay, then you may have heard it referred to as either variable workweek overtime pay or half-time overtime pay.

The department managers and assistment managers who make up the class in the Publix managers unpaid overtime class action lawsuit probably don’t care what the heck it’s called—they just believe they’re getting screwed out of pay. And, if you understand how Chinese overtime works, they’re kind of right.

So here goes: a Chinese overtime primer for those who haven’t had the pleasure of being paid this way…

In some jobs, the hours tend to fluctuate each week. Busier weeks call for longer hours; quiet weeks call for shorter hours. Many times when a job’s hours fluctuate, an employer will pay salaries based on a fixed salary for those fluctuating weeks. So the base salary—the straight-time pay—is the same each week even though the hours may in fact fluctuate.

The upside is that when there isn’t much work, the worker gets paid the set straight-time amount. Sort of a mini-coup for the worker, right?—work less, get paid the same.

The downside, however…well, let’s just say the Publix managers have been living more of the downside (allegedly) than the upside and that’s why they’ve filed the Publix class action lawsuit.

Here’s an example of how it would work–it’s tricky so try to hang with me. Say you’re paid $200 a week as your fixed salary. So regardless of whether you work 22 hours or you work 46 hours that week, you’re getting paid $200 for the week. However, if you worked the 46 hours, you’ve worked overtime and should get overtime pay. And this is where it gets tricky..

See, because you were ALREADY PAID straight time pay for those six hours according to how your pay is calculated (i.e., you get a fixed salary no matter how many hours you work), you won’t get time-and-a-half pay for your overtime hours. Those six hours are paid at only HALF your regular rate–which in management’s eyes is time-and-a-half because they’ve already paid you your fixed salary for those six overtime hours.

Nice deal, eh? Hell yeah for the employers–not so for the employees.

Tags: Chinese Overtime, Employment, Fluctuating Work Week, Overtime Pay, Publix Lawsuit, Publix Overtime Class Action, Unpaid Overtime, Wage and Hour
Posted in Class Action, Emerging Issues, Employment | 99162 Comments »2012-05-01+17%3A00%3A46AbiK

Actos Heart Attack Victims Back in the Ring for Round #2?

April 26th, 2012. By AbiK

Not long ago the diabetes drug Avandia had all the media focus. Patients who were on the drug were hit with a barrage of information—sometimes confusing, sometimes scary—about Avandia’s link to heart attack. And thus began the mad dash to switch over to Actos. After all, while there were also some studies linking Actos to heart attack (along with the infamous TIDE trial), they were reported to be ”inconclusive”. Not concrete enough to stop a flurry of prescriptions.

And the black box warning that Actos received (along with Avandia) back in 2007 was only regarding heart failure risk in the form of congestive heart failure—not heart attack or myocardial infarction.

But some Actos patients had already suffered heart attack. And many had submitted complaints in hopes of an Actos lawsuit v. Takeda, the drug’s manufacturer. But their complaints, for all intents and purposes, seemed to fall on deaf ears—at least where lawyers were concerned.

How could it be? As lawsuits about Actos bladder cancer were sprouting up, Actos heart attack complaints fell by the wayside. And yet, given they share a drug class, thiazolidinediones, there seemed to be such similarity between Avandia and Actos—why, it would be almost intuitive that they could perhaps have similar side effect or adverse event profiles, right? And what about some of those studies—was there anything to them?

Then, something unforeseen happened in the form of former Takeda consultant, Dr. Helen Ge—the Actos whistleblower.

And suddenly, everything—sadly—made sense for those Actos patients who had tried to file Actos heart attack complaints. Only now, was it too late? They had already tried to contact lawyers who had rejected them or not taken up their cause simply because there wasn’t much the lawyers could do with them.

Now, however, there might be.

The Actos whistleblower lawsuit (U.S. ex rel. Helen Ge v. Takeda Pharmaceutical Co., 10-cv-11043, U.S. District Court, District of Massachusetts (Boston)) has shone light on Dr. Ge’s assertion that Takeda knew about instances of Actos heart attack but downplayed them—for the sake of increasing their profits.

Dr. Ge claims she was let go from Takeda after she raised concerns over the company’s handling of the Actos safety data—and that officials at Takeda tried to direct medical reviewers, including Dr. Ge, to “change their professional opinion” regarding the potential dangers of Actos heart problems—specifically Actos myocardial infarction.

The whistleblower lawsuit is, in effect, a game-changer for Actos litigation. And former Actos victims might find that where there once was no direct path to an Actos lawsuit, there now might be.

Welcome to Round #2.