Back in the sixties, those days of the Cold War, flower power, and the creation of strict liability, the Cuban revolutionary Che Guevara was credited with the phrase “create two, three, many Vietnams.” Che was not, as far as we know, a plaintiffs’ lawyer. In Florida, however, Che’s philosophy seems alive and well in the Prohias litigation we discussed in our recent post about strike suits, here .

In that post, we pointed out that the second of two Prohias decisions, Prohias v. Pfizer, Inc., ___ F. Supp.2d ___, 2007 WL 1682515 (S.D. Fla. May 29, 2007), had become the sixth decision to apply a consumer fraud statute’s “safe harbor” provision to FDA-regulated activity – something we thought timely, since we had earlier posted on this very topic only days before Prohias II was decided.

Little did we know.

Not long after that, a self-confessed “avid” reader of our blog, Dave Walz (from Carlton Fields in Tampa), emailed us to let us know that we were still behind the times. Two weeks after Prohias II (and two weeks before our “Strike Suits” post), he tells us, that a Florida state appellate court issued yet another decision throwing out a consumer fraud claim under the Florida “safe harbor” provision.

Oops. It pays to Shepardize.

Dave was 100% right. There are now seven cases holding that FDA-approved warnings or other conduct is within the safe harbor for government authorized activity – the seventh being Prohias v. AstraZeneca Pharmaceuticals, L.P., ___ So.2d ___, 2007 WL 1687673 (Fla. App. June 13, 2007). The court “entirely agree[d]” with the proposition that “promotional and advertising activity. . .supported by the FDA-approved labeling for [a drug] thus is ‘specifically permitted’ by federal law,” within the meaning of the Florida statute and is therefore exempt from suit. Id. at *1. Then it goes on to cite several of the cases we’d cited in our own post Id.

Wait a minute.

Isn’t the name of this new case, Prohias, somehow familiar? We mean, if it had been Smith, or Jones, maybe it was a coincidence – but not Prohias. Guevara would probably qualify as more common.

Well, we’d previously posted on a case holding that plaintiff recruitment was fair game in class actions (and, of course, Prohias III was a class action, too), so shouldn’t we put our money where our mouth is?

So we took a look. Prohias I and Prohias II were brought in federal court by “Nilda Prohias” as the class plaintiff in an off-label promotion case brought against Pfizer concerning the blockbuster drug Lipitor. Prohias III was brought by “Yolanda Prohias” on an identical theory against AstraZeneca concerning the blockbuster drug Nexium.

Any other similarities?

What do you think? We assume most of our readers, sharing our defense biases, can guess without us even having to give the punch line. Both Prohiases (if that’s the right way to pluralize it) are represented by the same set of plaintiffs’ counsel. So in Florida, instead of creating “two, three, many Vietnams,” we’re now seeing two, three, (we hope not) many Prohiases.

Thankfully, these cases don’t look like they’re going to get to the point of adequate representation discovery, but if they ever do…. We’d be interested in what turns up.

Unfortunately, we also have to update our “Strike Suits” post in a second, unrelated, way. In that post, we had also discussed the court’s rejection of the so-called “price inflation” theory of damageless damages – where some economist wants to testify that “improper” (we would say, First Amendment protected) promotion raised the price of the product to everybody, even those who were never exposed to the promotion. As we’ve said before, however, it seems that every cause of action, however bedraggled it might be, has a friend somewhere.

Well so does “price inflation.” Just the other day in In re Zyprexa Products Liability Litigation, ___ F. Supp.2d ___, 2007 WL 1851161, at *7 (E.D.N.Y. June 28, 2007), the court denied summary judgment against a “price inflation” claim under the New York consumer fraud act despite acknowledging that there was no precedent to support that theory (and, indeed, that prior precedent had found it “not actionable”). Thus a massive class action was permitted to continue in the absence of any legally-recognized theory of damages. Indeed, as we pointed out in our “Strike Suits” post, the theory has been almost universally rejected.

If Zyprexa had been in state court, we wouldn’t like this decision on the merits – but at least we’d have to concede that it was within the court’s power to make such a ruling. Zyprexa, however, is a diversity case in federal court (at least as to the consumer fraud claims). We’ve posted before about how federal courts would do well to “remember federalism.” We cited nearly unanimous appellate precedent, from the Supreme Court on down, to the effect that:

A federal court in diversity is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.

Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4 (1975).

We’d really like to see the appellate courts put some teeth in the Supreme Court’s admonition, so that future Zyprexas don’t happen. If that doesn’t occur, we think it might not be a bad idea to provide the current Supreme Court with another opportunity to opine on the propriety of federal court activism in “interpreting” novel question of substantive state tort law.