Joseph P. Thomas’ Patient Approach

The class action defender at Ulmer & Berne in Cincinnati changes perceptions about big pharmaceutical firms

Published in 2013 Ohio Super Lawyers — January 2013

Q: Is defending pharmaceutical companies an uphill battle?

A: That’s always the case. They are significantly maligned; jurors have negative perceptions of them. In just about any jurisdiction in the United States, there is a very, very high level of skepticism. I like changing those perceptions and helping [jurors] to understand, if they’re sick or a family member is sick, they’re going to be grumbling about paying for pharmaceutical products, but they’re also going to be saving the lives of their loved ones.

 

Q: How do you change those perceptions?

A: Obviously, you’ve got someone who’s been injured, and there’s a lot of sympathy associated with that. You have a significant amount of educating to do. Even if you are the defense lawyer in the case, the only proper thing for you is to be compassionate yourself. The only proper approach to the litigation and to the plaintiff is to have compassion for the people who were truly and genuinely injured. That’s not always the case; sometimes they’re truly and genuinely injured, but it’s not from the product. But compassion is an important part of it. We’re dealing with human beings. I still like to think of them and treat them as patients as opposed to plaintiffs.

 

Q: In fact, in your first career, you were a pharmacist—one with lots of patients.

A: I became the chief of the inpatient pharmacy at the VA Medical Center in Cincinnati … when I was maybe 26. I don’t think I had an employee that was younger than me, and I had a pretty big staff. In the clinical pharmacy scenario, you do a lot of things that … are not traditional pharmacy; you work on the wards with the physicians.

 

Q: So why the switch to law?

A: This is not going to make a lot of sense to a lot of people, but I went to law school because I was curious about it and I wanted to learn about it. I didn’t necessarily go to law school with an intention of being a practicing attorney. [When] I was just about to graduate, I thought to myself at the time that if I ever wanted to find out what the practice of law was like, I needed to do it right away, because if I didn’t, I wouldn’t really be employable as a lawyer. I had a total of two interviews for law jobs and was hired immediately following one of them, so but for that, I probably would not have changed.

 

Q: What firm was that?

A: I went to the law firm Porzio, Bromberg & Newman in Morristown [N.J.] because they represented a lot of pharmaceutical companies. I have almost exclusively represented pharmaceutical companies since the time I graduated from law school. It’s a combination of things that I know, and it’s logical, but it’s also very, very interesting. When you represent pharmaceutical companies, you learn the details of medicine involving your particular litigation in a tremendous amount of detail, almost to the point where, from litigation to litigation, you become an expert in that area. If you already have a doctorate degree in pharmacy, you have a significant advantage.

 

Q: Major cases?

A: The most recent and most compelling case that we have had is the case of Pliva v. Mensing. That’s my case. I argued it in the district court and prevailed on it; I argued it at the 8th Circuit and lost; my office filed the petition for cert with the U.S. Supreme Court, and that was granted. Our office didn’t argue it … but it’s a landmark decision, and you don’t have that opportunity very many times.

 

Q: You were at the counsel table?

A: Yes. You know that, when you’re there, you’re on something that’s fairly momentous. The really curious thing about it is you’re closer to the justices than you ever are to a judge at the federal courthouse. You sit remarkably close to the bench, so you see their expressions and their mannerisms, and you can almost sense what they’re thinking because you can see how they’re reacting. I’ve argued that particular issue … so many times all over the United States. I’ve had an awful lot of people try to tell me that I was wrong, including very many judges, over the years. So it felt good to come out on top of that after fighting the battle for 15 or 16 years.

 

Q: What is the theory you’ve been arguing?

A: The idea is that generic pharmaceutical companies sell products that have to be the same as the branded product in terms of the active ingredient, for example, but also in terms of the labeling. Pharmaceutical litigation almost always boils down to the argument that you failed to provide adequate warning to the [prescribing] physician. So [my theory] here is that [the generic brand] had no choice about the content that the warning provided to the consumer because it had to be, by law, the same as the branded warning. [So] you should not be subject to liability for having provided an inadequate warning.

 

Q: What is the opposing argument?

A: In the early course of this, making this argument, we prevailed in some cases because the plaintiff simply gave up or thought we were right. When what was at stake became larger and larger mass torts, plaintiffs were more willing to fight over it. Some judges came to the conclusion that we were right only with regard to what our labeling needed to be at the time of approval. Plaintiffs argued that we could change the labeling after we got approval if we came across new or different information. What we ultimately prevailed on was the notion that the label needs to be the same at all times, so therefore there can’t be any basis for claim.

 

Q: But if the brand changes its label, the generics also need to change theirs?

A: Yes, it has to remain the same. The FDA sends out emails to the pharmaceutical industry that include links to all the labels that have been revised. Someone in the pharmaceutical company is responsible for monitoring that: They click on the link and they can see the changes that have occurred, and they have to update and change their labels so that they remain the same as the branded labels.

 

Q: What is the benefit of keeping generic drugs free of liability?

A: I would say that 99 percent of the people in the United States, if going to a pharmacy to get their prescription filled, were given the option of getting their prescription for $4 or $10 instead of $150, and if they were told that—if they took the $4 or $10 prescription—they wouldn’t be allowed to file a lawsuit if they had a side effect, would [opt to pay] $4 or $10 for their prescription. There is a tremendous benefit that the generic pharmaceutical user receives by using generic drugs, and the cost savings to society and even to the government is measured in the billions upon billions of dollars. Almost every day there’s a [court] decision that involves Mensing. We can hardly count them. In our office alone, we’re involved in hundreds upon hundreds of matters that have to do with Mensing. In just about every jurisdiction in the United States, my office has cases where Mensing is the key and core issue.

 

Q: Must be amazing to think you’re the one who started all that.

A: It’s interesting that people talk about they’re going to file a Mensing motion. It’s part of the lingo already.

 

Q: Had Mensing gone the other way, what would be the repercussions?

A: There are maybe 15 or 20 different generic drugs for the same pharmaceutical product, and they all would have different warnings and different labeling. Every company would have the obligation to go out and monitor the literature and come to conclusions on its own, and the generic companies would have to do that without the benefit of the clinical studies that only the branded companies and the FDA possess. … Physicians would no longer have the confidence that they could go to a shelf [and] get the correct and accurate information, because it would just depend on whose product was on the shelf.

 

Q: Who were the early influences in your life?

A: Your parents are always an influence. … We were a family that didn’t have a whole lot. I was the fourth of six kids, and I was the first of the six to go to college. So my parents aren’t people who went to college. My father was probably the most intelligent person I ever met, and he had an eighth-grade education. He retired from San Bernardino County; worked as a benefits administrator. He did ultimately get a GED, and when he was in his 50s or 60s, he did go to college. He was a straight-A student. But when he was a kid he finished the eighth grade. It was the Depression and wartime, and that was it for him till his family was raised.

 

Q: Was education stressed in your home?

Certainly we were expected to do well. I would say there wasn’t much of an expectation that we would actually go to college because that was not something that had ever been done before.

 

Q: So you must have worked your way through school?

A: I worked untold numbers of hours while I was in school, yes. First I went to Long Beach State until I got into pharmacy school; I was a chemistry major there, and I worked on campus in the area where they had the printing shops. I did the same thing when I was at Washington State; I got a job on campus in the area where they did all the printing.

 

Q: What has changed over the years, in your practice area?

A: Someone said to me when I first started handling pharmaceutical litigation that it was basically a mature business, meaning it didn’t have much life left. What really happened from that point forward is it absolutely exploded. The sophistication of the plaintiff’s bar in monitoring scientific and regulatory events, getting information posted almost immediately about new studies that have come out, the organization of the plaintiff’s bar … I think it has just grown tremendously.

 

Q: What do you like most about your job?

A: I do believe that I’m on the right side of these issues. A lot of people are in litigation and it doesn’t matter [to them] if they’re on the plaintiff’s side or on the defense side: It’s a job. I—maybe in part because I’m a pharmacist—believe pretty strongly in the pharmaceutical industry. When you try a case and you have the opportunity to fully and completely explain the position of the pharmaceutical industry, and the benefits they provide and the improvement to society and the lives of individuals, that’s what’s rewarding.

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