Lawyer Branding And The Race For Actos Bladder Cancer Clients

If you were diagnosed with bladder cancer after using Actos and are reviewing your legal options, please see my Actos Bladder Cancer Lawyers page for patients. As of June 2012, The Beasley Firm is still accepting cases and filing lawsuits on behalf of Actos consumers.

I wrote this post for my legal blog, which is ordinarily read by other lawyers. Patients looking for legal help should read the Actos page linked above. 

Personal injury law isn’t like running an ordinary business, not even an ordinary law practice, because of the risk involved in taking cases. Defective drug and consumer products lawsuits exemplify both extremes of our work: the cases are enormously expensive to pursue and require a tremendous amount of attorney time, but they also have the potential to be lucrative blockbusters.

Problem is, once a drug or product is shown to be unreasonably harmful by a study or a recall, there’s no way for us to know for certain what the courts will do with the lawsuits. We don’t roll the dice — it’s much more rational and systematic than that — but we have to play the odds. So it will be with Actos lawsuits: we believe the drug was inadequately tested and didn’t warn patients of the risks, and will vigorously pursue cases against their manufacturer, but the cases aren’t without considerable risk.

Consider the denture cream lawsuits. To paraphrase what I wrote last week while discussing asbestos lawyers, GlaxoSmithKline settled the vast majority of Super Poligrip claims, but Proctor and Gamble fought the Fixodent cases, resulting a judge dismissing one of the bellwhether cases on Daubert grounds.

One of the drug cases trial lawyers are pursuing these days involve Actos (pioglitazone), the best-selling Type 2 Diabetes drug in the world. The Associated Press recently wrote about the “wave of lawsuits” filed against Takeda Pharmaceuticals:

TRENTON, N.J. — The maker of the world’s best-selling diabetes drug is facing hundreds of lawsuits and likely a big sales drop as suspicion grows that taking the pill for more than a year raises the risk of bladder cancer. …

both the U.S. Food and Drug Administration and the European Medicines Agency have issued warnings about the cancer risk based on new research, but they have allowed sales to continue. Doctors are being told not to prescribe Actos for people who have or have had bladder cancer.

The warning will limit patient choices and could spell the end for a once-promising class of Type 2 diabetes drugs that debuted more than a decade ago amid heavy promotion.

An FDA warning that a popular drug increases the risk of any type of cancer or heart disease virtually guarantees the filing of thousands of lawsuits, and pioglitazone is no exception: it raises the risk of bladder cancer by more than 40%, or an “extra 28 cases a year for every 100,000 people taking it.” The irony is why Actos is so popular:

Actos, despite links to heart failure risk and other serious side effects, became the No. 1 diabetes pill after Avandia, the only other drug in that class, was found in 2007 to sharply increase risk of heart attacks. Avandia’s use was banned in the EU and sharply restricted here. Actos sales jumped from about $2.9 billion in 2006 to more than $4.3 billion last year.

Avandia’s restriction, of course, prompted its own wave of lawsuits, and GlaxoSmithKline has settled about 12,000 of them for around $700 million. Assuming the clients are on one-third contingent fee agreements, that’s over $200 million for the lawyers. I don’t say that to be critical; one of those firms, for example, recently spent hundreds of thousands of dollars on an antitrust action just to lose and then also get hit with almost $600,000 in costs. It’s a big-risk, big-reward kind of business, and one of the few elements of society keeping medical products safe in light of the broken clearance processes we have for new drugs and devices.

Which brings me to one of the lessons this episode has for lawyers trying to build a personal injury or product liability law practice. The AP article included a little window into the lawyers’ side of the Actos litigation:

Paul Pennock of Weitz & Luxenberg, said the firm already represents another 104 clients, has about 120 more expected to pursue lawsuits and is getting 30 to 40 possible new cases a week. …

Other large law firms are evaluating potential cases by the dozen or more. More than 20 firms, from Florida to Washington state, are advertising for clients on the Internet or in newspapers, a standard practice in personal injury law.

“We don’t think it’s a coincidence that we’ve been contacted by so many people who have been taking Actos and have bladder cancer,” said Marc Jay Bern of Napoli Bern Ripka Shkolnik & Associates. “We have more than 100 (cases) that we’ve confirmed and many more that we’re evaluating.”

“More than 20 firms” is a wee bit of an underestimate. Google estimates there are 2,810,000 results for “actos lawsuit,” a number which will surely grow. Every single result on I saw in the first few pages was a different law firm searching for clients. My “favorite,” on the first page no less, was this SEO spam blog with a barely-English paragraph of drivel linking out to another site that doesn’t even identify the lawyers behind it. (Both links coded “nofollow.”)

Lawyer branding” is all the rage today. The self-proclaimed social media experts recommend spending enough time on Google+ that maybe, just maybe, you can write so many single sentence thoughts — or sentence fragments, if you’re on Twitter — that someone either becomes your client or refers you a client. On the flip side, the old-school lawyer bloggers (like the ones linked above) consider this to all be a sham, and suggest lawyers first build a reputation through their work and second, if they have the time, write an opinionated, personal blog. I generally agree about this long-path to lawyer marketing, and have criticized other firms for putting advertising ahead of representation.

But this model won’t work for every lawyer. There are certainly many lawyers who are also diabetics and, among them, some who took Actos and developed bladder cancer. Maybe they know who to call.

A typical diabetic who has been treating for bladder cancer, or had a stroke, or congestive heart failure, or whatever, however, spends no time on Google+ talking to lawyers and, in all likelihood, doesn’t know any law firms that practice multidistrict litigation. They don’t know any defective drug lawyers. They likely don’t know any lawyers at all except, maybe, a local car accident or criminal defense (or a lawyer who does both!) lawyer.

That’s nothing particular to diabetics or cancer survivors; truth is, the vast majority of Americans have no clue where to find a specialized lawyer, just like how the vast majority of lawyers don’t have a clue where to find a good mechanic or roofer, much less a licensed professional who practices in a particular sub-specialty of law. I bet even most of the lawyer-diabetics-with-bladder-cancer don’t know which firms are best setup to represent them.

Which brings us back to Weitz & Luxenberg and Napoli Bern Ripka Shkolnik & Associates. Those firms aren’t fly-by-night operations or new lawyers puffing up their credentials or old lawyers trying to score a couple easy referral cases. Weitz & Luxenberg has fought a lot of uphill battles in asbestos litigation and won. Napoli Bern Ripka poured tens of millions into the 9/11 first responder cases, in which their opponents had essentially unlimited resources, and won those, too. If a friend in New York City called me and asked about those firms, I’d say they’re both great firms with solid track records; if you have a good rapport with the lawyer on your case, then go with them.

Where are they getting their cases from? Probably a fair number are referrals from other lawyers who know their reputation, but I find it unlikely that the plaintiff named in the article, Nancy Rios, a hospital secretary from Reading, Pennsylvania, saw the news about pioglitazone and said to herself, “this sounds like a case for Paul Pennock over at Weitz.”

She probably saw an ad on television.

I’ve seen numbers out there suggesting that Weitz & Luxenberg spends over $4 million annually on television advertising, but those same numbers said James Sokolove spends $10 million while John Morgan spends $6 million, and from what I know both of those are low. So let’s safely assume Weitz & Luxenberg spends over $5 million annually on television advertising.

Over $5 million annually for a firm of genuine trial lawyers with a good reputation.

What’s this mean for other lawyers? I wish we were in an era in which “lawyer branding” and “lawyer marketing” were really about the reputation a lawyer creates through zealous and effective advocacy and superior client service, but we’re not, at least not for every field of law. If you as a lawyer want to “make it big,” you can’t leave stones unturned. The effective representation has to be there, as does the “branding” and the “marketing.”

The real question, then, is how many lawyers really want to put in the time, effort, money, risk, and marketing to make it that big. There’s no shame in being Atticus Finch, the honest lawyer with a decent practice in a small town; indeed, there’s honor in providing appropriate legal services to people in need. That’s the glamour and glory of being a lawyer.


 

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  • John Day

    Times have changed and, particularly in drug product litigation, a lawyer who attempts to handle a couple of cases is, quite frankly, a fool. These cases require tremendous resources – human and financial – and a lawyer attempting to handle a couple of cases will be overwhelmed.

    I make these comments as a lawyer with 3o years of experience in personal injury litigation, handling medical malpractice cases (perhaps the most difficult of cases to try) during that entire period. Drug litigation is just different, and smart lawyers will not dabble in it.

    I, for one, will not.

    • Anonymous

      Indeed. The scenario I’ve seen a couple times (and it has baffled me each time) involves an associate with 5-7 years at a drug firm opening up his own firm. There isn’t a chance in the world the lawyer can fund their own cases. I would assume they’re just assisting other firms that are bank-rolling the cases, but in each instance the associate denied it. Go figure.

      I do think some of these lessons are applicable to non-drug personal injury practices, too. I know that a lot of personal injury lawyers in Florida feel like they’re under attack by Morgan & Morgan given the volume of their advertising. The questions lawyers need to ask themselves in that situation are (1) am I doing all of the non-advertising things I need to do and (2) do I really want to compete with Morgan & Morgan or do I just want to run my own firm with a low overhead and control my own destiny?