In this edition of Litigation Roundup, Texas follows up on a Medicaid fraud lawsuit accusing Pfizer of manipulating data about the efficacy of a pediatric attention-deficit drug with a lawsuit accusing the pharmaceutical company of lying about the effectiveness of its Covid-19 vaccine, Antero Resources continues its fight to recover an $11.9 million judgment from a former manager and an intermediate appellate court finds a fatal products liability suit should be litigated in Dallas.
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Lubbock County District Court
Texas Says Pfizer Misrepresented Covid Vaccine Efficacy
An investigation launched by the Texas attorney general’s office in May into whether drug manufacturers misrepresented the efficacy of the Covid-19 vaccine has resulted in a lawsuit against Pfizer.
In a news release issued Thursday, Texas Attorney General Ken Paxton said Texans had been “coerced by tyrannical vaccine mandates to take a defective product sold by lies.” The lawsuit accuses Pfizer of misrepresenting how effective the vaccine was, in violation of the Texas Deceptive Trade Practices Act, and of attempting to “censor the vaccine’s critics.”
Pfizer issued a statement to The Lawbook that it believes the case “has no merit.”
“Since its initial authorization by FDA in December 2020, the Pfizer-BioNTech Covid-19 vaccine has been administered to more than 1.5 billion people, demonstrated a favorable safety profile in all age groups, and helped protect against severe Covid-19 outcomes, including hospitalization and death,” the statement reads. “The representations made by the company about its Covid-19 vaccine have been accurate and science-based.”
Texas’ suit takes issue with Pfizer’s “widespread representation” that the vaccine was 95% effective and argues that was a misleading statement because it was based on the “relative risk reduction,” which reflects the percentage of risk removed as a result of the vaccine.
“Notably, FDA scientists have published literature in highly respected, peer-reviewed journals explaining how relative risk reduction can be ‘misused’ to ‘exaggerate’ a drug’s benefits,” the lawsuit alleges.
Texas is represented by Ryan S. Baasch, Christin C. Vasquez, David G. Shatto and Jason C. McKenney of the office of the attorney general.
A case number and counsel information for Pfizer wasn’t available Monday.
Northern District of Texas
Antero Seeks TRO Against Former Manager in $11.9M Kickback Case
Antero Resources Corporation has asked the court for a temporary restraining order and preliminary injunction that would prevent its former operations manager in West Virginia from “dissipating assets” that should be used to pay off a $11.9 million judgment to the company.
John Kawcak was hit with the final judgment in August 2022, after a jury determined he accepted kickbacks for natural gas projects in West Virginia in exchange for steering contract to companies controlled by his close friend, Tommy Robertson.
In a motion filed Nov. 27, Antero told the court that immediately after the judgment, Kawcak and his wife “began dissipating their assets to avoid paying Antero.”
“One week after the judgment, John and Jennifer Kawcak created an offshore trust and LLC in notorious wealth havens: Nevis and the Cook Islands,” Antero told the court. “Defendants then systematically created liens on all of John Kawcak’s real and personal property totaling nearly $4 million.”
On Oct. 31 the Fifth Circuit determined that Kawcak may get the opportunity to investigate whether he’s entitled to pay less because of a settlement Antero made with another party. The panel held that U.S. District Judge Terry R. Means’ decision to deny Kawcak an opportunity to pursue post-trial discovery of Antero’s settlement with companies owned by Kawcak’s close friend, Tommy Robertson, was based on “an erroneous understanding of the law.”
The Fifth Circuit sent the case back to Judge Means to determine whether Kawcak should be entitled to take post-trial discovery. Judge Means had denied the request based on Kawcak’s failure to introduce evidence at trial about the amount of the settlement, and the Fifth Circuit held there was no precedent “obligating a defendant to prove the existence of a settlement credit at trial.”
The case has been assigned to U.S. District Judge Terry R. Means.
Antero is represented by Phillip Dye Jr., Ethan Nutter and Katherine D. Grissel of Vinson & Elkins.
Counsel for Kawcak had not filed an appearance as of Monday.
The case number is 4:23-cv-01167.
Fifth Court of Appeals, Dallas
Fatal Products Liability School Bus Suit Belongs in Dallas
Bus manufacturer Blue Bird Body Company and bus dealer Rush Truck Centers of Texas have been handed another loss in their bid to move from Dallas County a products liability lawsuit brought by the parents of a girl who was run over and killed by a school bus.
In a decision issued Nov. 30 the three-justice panel rejected arguments that the lawsuit brought by the parents of Emory Sayre, who was killed in April 2022, belonged in either Comal County, where Rush’s principal place of business is, or Parker County, where the fatal incident occurred.
“The evidence shows that the bus was ordered, delivered, inspected, titled, billed, and paid for out of Rush’s RBC-Dallas facility, which at the time of sale was located on Irving Boulevard in Dallas County,” the panel wrote.
Rush and Blue Bird appealed to the Fifth Court of Appeals in July after Dallas County District Judge Maria Aceves declined to move the suit. The family is alleging the bus was defective because it didn’t have a crossing gate or other technology that would limit the risk to children passing in front of the bus.
Justices Bill Pedersen III, Cory L. Carlyle and Dennise Garcia sat on the panel.
The Sayres are represented by Muhammad S. Aziz and Karl P. Long of Abraham, Watkins, Nichols, Agosto, Aziz & Stogner and Jeffrey S. Levinger and J. Carl Cecere of Levinger PC.
Rush and Blue Bird are represented by Richard G. Grafton and Ben Zinnecker of Germer Beaman & Brown.
The case number is 05-23-00775-CV.
U.S. Court of Appeals for the Fifth Circuit
Split Panel Sides with Feds in Texas’ Floating Barrier Challenge
In a 2-1 ruling issued Friday, the Fifth Circuit found U.S. District Judge David A. Ezra did not abuse his discretion in granting the federal government a preliminary injunction requiring Texas move its floating barrier in the Rio Grande River to the riverbank.
The United States had sued Texas and sought an injunction, arguing that the floating barrier violated the Rivers and Harbors Appropriation Act because the structure had been erected in the river without authorization from the U.S. Army Corps of Engineers, and because the structure obstructed the navigability of the waterway without authorization from congress.
“The dissent would demand a higher showing than what is required,” the majority wrote. “To succeed under the RHA, the United States need not prove that the Rio Grande was, in fact, historically used for commerce. It need only show that it was historically susceptible of use for commerce. The evidence put forth by the United States overwhelmingly supports, at least, the conclusion that the at-issue segment of the Rio Grande was historically susceptible of use for commerce.”
Judge Don R. Willett wrote in a dissent that he would have determined the United States failed to show it was entitled to a preliminary injunction.
“It is entirely unclear how the preliminary injunction — which orders the barrier to be moved, but not removed (as Mexico demands) — remedies the United States’ diplomatic harms,” he wrote. “And as for the balance of the equities and public interest, the United States offers no substantiated record evidence that could justify a preliminary injunction.”
Judge Willett wrote that the federal government had to prove that the stretch of Rio Grande River at issue was “navigable” in order to obtain the injunction under the Rivers and Harbors Act, but failed to do so.
“More than a century of precedent points to only one conclusion: This 1,000-foot segment is not navigable,” he wrote. “The majority opinion and the district court overlook this well-settled law and distort the test for navigability.”
Judges Dana M. Douglas and Carolyn Dineen King were also on the panel.
Texas is represented by Ari Cuenin of the Texas solicitor general’s office.
The United States is represented by Michael Thomas Gray of the Department of Justice.
The case number is 23-50632.
U.S. Court of Appeals for the Federal Circuit
Intel Gets One Infringement Finding Tossed, New Damages Trial on Another in $2.1B Case
A patent infringement lawsuit involving microprocessors that had netted VLSI Technology a $2.1 billion was largely undone by a panel of judges on the U.S. Court of Appeals for the Federal Circuit on Monday.
At trial before U.S. District Judge Alan Albright in March 2021, jurors in Waco had determined Intel infringed two patents, awarding $1.5 billion for infringement of one patent, and $675 million for infringement of the other. Final judgment was entered in favor of VLSI in April 2022, awarding the company $2.1 billion, according to court documents, and an appeal quickly followed.
The federal appellate court upheld the jury’s finding that Intel had infringed the patent that resulted in a $1.5 billion award, but determined that a new trial on damages was warranted. The court determined Intel had not infringed the patent that netted the $675 million award.
In particular, the Federal Circuit found it was an abuse of discretion on Judge Albright’s part to deny Intel a chance to plead that it actually had obtained a license to practice both VLSI patents. Judge Albright denied Intel’s request, lodged a few months before trial, to amend its answer to assert the licensing defense.
“This is a very narrow holding,” the panel wrote. “We do not conclude that the license defense is meritorious. We conclude only that the governing law is such that the defense requires additional litigation of the sort that begins once it is added to the case, whether that process is a fully developed motion to dismiss, with fuller analysis of the governing law than has yet occurred, or more fact-based based litigation. Intel might well fail to sustain the defense, but we do not see failure as foreordained on the material supplied to date.”
Judges Alan D. Lourie, Timothy B. Dyk and Richard G. Taranto sat on the panel.
VLSI is represented by Jeffrey A. Lamken of MoloLamken.
Intel is represented by William F. Lee of Wilmer Cutler Pickering Hale and Dorr.
The case number is 22-1906.