Litigation over Merck’s hair-loss drug Propecia—which plaintiffs allege can cause sexual dysfunction and emotional disorders—is still in its early stages and is rapidly evolving, said John F. Romano of the Romano Law Group speaking at the HB Litigation Conferences Propecia Litigation Update teleconference on Oct. 26.
“I think it is fair to say that most people have a lot more questions now than they do answers,” said Romano.
Romano, a plaintiff lawyer, said that because many of the cases involve sexual dysfunction, which can occur naturally as a man ages, proving specific causation will be challenging in the cases.
“A very strong case would be a married man in his 20s or 30s with kids who has taken Propecia and then he gets erectile dysfuction—and then the side effects have never gone away after he has stopped taking the Propecia,” Romano said.
He said that Merck first put warning labels on Propecia about the possibility of persistent sexual side effects as early as 2008 in Sweden, followed by similar warning labels in the United Kingdom and Italy.
Romano said that there have been Propecia cases filed in federal courts in New Jersey, Washington, Florida, Colorado and the District of Columbia. A class action was filed in Ontario, Canada and several cases have been filed in a New Jersey state court as well.
Ed Jazlowiecki of Jazlowiecki and Jazlowiecki said that his firm filed its first Propecia case on Feb. 2, 2011. He said that his firm plans to file its Propecia cases individually rather than as a class action because they tend to be “individual specific”.
He said that he has interviewed several hundred people and has witnessed some “very, very adverse reactions” including three suicides and one case of male breast cancer.
“Almost to a man, every plaintiff we have has said ‘this drug has wrecked my life’,” said Jazlowiecki.
“We’ve had 3 or 4 people who’ve been divorced. The wife divorced him because … he couldn’t perform sexually which led to fights and arguments. We’ve had several people drop out of school because they couldn’t concentrate,” said Jazloweicki.
Neurologist Dr. Alan Jacobs said during the webinar that he saw his first Propecia patient in 2009—a young Wall Street executive who complained of the inability to focus and a “brain fog.” Over the past few years he has seen many more patients, many of whom were suffering from emotional and sexual disorders.
“Most of the guys … would give anything to not have taken the drug and curse the day they put it in their bodies because they are so distraught by the loss of their gonadal function,” said Dr. Jacobs.
Andy Weiner of Dickstein Shapiro spoke at the conference on the insurance perspective.
“With defending these types of product liability claims—particularly if they are class action claims or mass tort claims as they are certainly the potential here—the defense obligation to a corporate defendant is more important than the indemnity obligation,” Weiner said.
He said that plaintiffs should be very careful when drafting their complaint to ensure that they include language to trigger various coverages under the Corporate General Liabililty (CGL) policy.
“Ultimately, before an insurance company is going to put money up for a settlement they are going to require more than just what is required to get them on the hook for a defense. A duty to indemnify is triggered by the actual facts,” he said.
“You’ve got to be able to prove up what you allege if you want to get the insurance company to contribute money towards the settlement,” said Weiner.
To purchase the recording from the Propecia teleconference, click here.