We’ve been following with interest the recent activities in the Zyprexa litigation, since it looks like the plaintiffs in this batch of cases are dropping like flies. We admit, though, that we haven’t been particularly complete about those developments, since our prior posts describe only five summary judgment grants.

We’re not sure whether the Zyprexa summary judgments are drawn from some pre-selected pool of plaintiffs or whether it’s just open season for the defense to move against any cases they want (the opinions aren’t clear). In either event, there sure has been a bunch of summary judgment action lately. Looking at the Zyprexa results with a fresh eye, by our count the good guys are up something like 13-1:

• In re Zyprexa Products Liability Litigation (Head), ___ F. Supp.2d ___, 2009 WL 2425983 (E.D.N.Y. July 31, 2009) – summary judgment granted because a different warning wouldn’t have changed the prescriber’s conduct under Arizona law.
• In re Zyprexa Products Liability Litigation (Fuller), 2009 WL 2485829 (E.D.N.Y. July 31, 2009) – summary judgment granted under the California statute of limitations.
• In re Zyprexa Products Liability Litigation (Carey), 2009 WL 2487305 (E.D.N.Y. July 27, 2009) – summary judgment granted because a different warning wouldn’t have changed the prescriber’s conduct under Virginia law.
• In re Zyprexa Products Liability Litigation (Pruett), 2009 WL 2245068 (E.D.N.Y. July 22, 2009) – summary judgment denied without prejudice because the application of the Minnesota statute of limitations is uncertain, and there’s a potentially dispositive case pending in the Minnesota Supreme Court; summary judgment denied because a different warning could conceivably have changed the prescriber’s conduct under Alabama law.
• In re Zyprexa Products Liability Litigation (Washington), 2009 WL 2163118 (E.D.N.Y. July 13, 2009) – summary judgment granted because a different warning wouldn’t have changed the prescriber’s conduct under Arizona law; summary judgment granted because plaintiff’s injuries predated use of the drug.
• In re Zyprexa Products Liability Litigation (Dean), 2009 WL 2004540 (E.D.N.Y. July 1, 2009) – summary judgment granted because a different warning wouldn’t have changed the prescriber’s conduct under Florida law, and there was no evidence of causal overpromotion.
• In re Zyprexa Products Liability Litigation (Misouria), 2009 WL 1851999 (E.D.N.Y. June 24, 2009) – summary judgment granted because a different warning wouldn’t have changed the prescriber’s conduct under California law.
• In re Zyprexa Products Liability Litigation (Leggett), 2009 WL 1850970 (E.D.N.Y. June 22, 2009), reconsideration denied, 2009 WL 2160999 (E.D.N.Y. July 8, 2009) – summary judgment granted (1) under the California statute of limitations; and (2) because a different warning wouldn’t have changed the prescriber’s conduct under California law.
• In re Zyprexa Products Liability Litigation (Morrison), 2009 WL 1851062 (E.D.N.Y. June 22, 2009) – summary judgment granted under the Missouri statute of limitations, and summary judgment granted because a different warning wouldn’t have changed the prescriber’s conduct under Missouri law.
• In re Zyprexa Products Liability Litigation (Neal), 2009 WL 1852001 (E.D.N.Y. June 22, 2009) – summary judgment granted because a different warning wouldn’t have changed the prescriber’s conduct under California law.
• In re Zyprexa Products Liability Litigation (Ortenzio), 2009 WL 1514628 (E.D.N.Y. June 1, 2009) – summary judgment granted because the plaintiff personally did not read any warnings, thus a different warning wouldn’t have changed his conduct under West Virginia (no learned intermediary rule) law.
• In re Zyprexa Products Liability Litigation (Clark), 2009 WL 1514427 (E.D.N.Y. May 29, 2009) – summary judgment granted (1) because a different warning wouldn’t have changed the prescriber’s conduct under Pennsylvania law; and (2) because plaintiff’s injuries predated use of the drug.
• In re Zyprexa Products Liability Litigation (Singer), 2009 WL 1404978 (E.D.N.Y. May 19, 2009) – summary judgment granted because (1) a different warning wouldn’t have changed the prescriber’s conduct under Pennsylvania law; and (2) because no expert testimony linked plaintiff’s injuries to use of the drug that stopped three years earlier.
• In re Zyprexa Products Liability Litigation (Smith), 257 F.R.D. 370 (E.D.N.Y. May 21, 2009), reconsideration granted and result reaffirmed, ___ F.R.D. ___, 2009 WL 2230802 (E.D.N.Y. July 21, 2009) – summary judgment granted because a different warning wouldn’t have changed the prescriber’s conduct under Arkansas law.

Fourteen summary judgment wins and only one loss (to date, anyway) is what we’d call good case selection. – the defense chose its best cases and made only strong arguments. This record is particularly notable, since Judge Weinstein, who decided all of these cases, isn’t a judge known for cutting our side any breaks.

The news hasn’t been as good, unfortunately, out of the Aredia-Zometa litigation. On August 13, the judge presiding over that MDL issued a slew of rulings on defense summary judgment motions. We’ve already commented on one aspect of one of those rulings. But there was a lot more going on than just that:

• In re Aredia & Zometa Products Liability Litigation (Fussman), 2009 WL 2496843 (M.D. Tenn. Aug. 13, 2009) – summary judgment denied (1) on grounds of general and specific medical causation under Daubert; and (2) under North Carolina law because a different warning might have made a difference (prescriber “testified that his treatment of and advice for [plaintiff] would have been different if he had his current knowledge”). Summary judgment granted on express warranty due to lack of reliance.
• In re Aredia & Zometa Products Liability Litigation (Forman), 2009 WL 2496843 (M.D. Tenn. Aug. 13, 2009) – summary judgment denied (1) on grounds of general and specific medical causation under Daubert; and (2) under New York law because a different warning might have made a difference (prescriber would have consulted a specialist and specialist “tends” not to prescribe the drug in plaintiff’s situation anymore). Summary judgment granted on express warranty due to lack of reliance.
• In re Aredia & Zometa Products Liability Litigation (Deutsch), 2009 WL 2496891 (M.D. Tenn. Aug. 13, 2009) – summary judgment denied (1) on grounds of general and specific medical causation under Daubert; and (2) under New York law because a different warning might have made a difference (prescriber “stopped [plaintiff’s] prescription” and “changed his prescribing habits” after learning additional information). Summary judgment granted on express warranty due to lack of reliance.
• In re Aredia & Zometa Products Liability Litigation (Anderson), 2009 WL 2496932 (M.D. Tenn. Aug. 13, 2009) – summary judgment denied on grounds of general medical causation under Daubert. Summary judgment granted (1) on grounds of specific medical causation under Daubert; and (2) because a different warning wouldn’t have changed the prescriber’s conduct under Minnesota law.
• In re Aredia & Zometa Products Liability Litigation (Melau), 2009 WL 2496939 (M.D. Tenn. Aug. 13, 2009) – summary judgment denied on grounds of general medical causation under Daubert. Summary judgment granted on grounds of specific medical causation under Daubert.
• In re Aredia & Zometa Products Liability Litigation (Emerson), 2009 WL 2497229 (M.D. Tenn. Aug. 13, 2009) – summary judgment granted because defendant is entitled to a presumption of adequacy from FDA labeling approval under Florida law, and plaintiff did not rebut the presumption.
• In re Aredia & Zometa Products Liability Litigation (Thomas), 2009 WL 2497286 (M.D. Tenn. Aug. 13, 2009) – summary judgment denied on ground of general medical causation under Daubert. Summary judgment granted on ground of specific medical causation under Daubert.
• In re Aredia & Zometa Products Liability Litigation (Brodie), 2009 WL 2497661 (M.D. Tenn. Aug. 13, 2009) – summary judgment denied (1) on grounds of general and specific medical causation under Daubert; (2) under Missouri law because a different warning might have made a difference (prescriber “stopped” using the drug and “would not have reconsidered” this decision after learning additional information); and (3) on design defect under comment k. Uncontested summary judgment granted on express warranty.
• In re Aredia & Zometa Products Liability Litigation (White), 2009 WL 2497692 (M.D. Tenn. Aug. 13, 2009) – summary judgment denied (1) on grounds of general and specific medical causation under Daubert; (2) under California law because a different warning might have made a difference (prescriber “would still prescribe [the drug], but with a change in how he prepares the patient” after learning new information); and (3) on negligent design claim. Summary judgment granted on express warranty because plaintiff could not establish the terms.
• In re Aredia & Zometa Products Liability Litigation (Hogan), 2009 WL 2513555 (M.D. Tenn. Aug. 13, 2009) – summary judgment denied (1) on grounds of general and specific medical causation under Daubert; (2) under Rhode Island law because a different warning might have made a difference (unspecified issues of fact on what the prescriber and treaters might have done differently); and on negligent design claim under comment k. Summary judgment granted on express warranty due to lack of reliance.

So the overall score in Aredia-Zometa is only a mediocre 4-6. It’s pretty clear that after the defendant lost the bulk of its Daubert motions, it didn’t have a lot to fall back on. We’d never second guess the Daubert strategy because – well, those things happen. Everybody’s lost Daubert motions. Not every plaintiff’s expert is a junk scientist (just the ones we happen to face in any given case).

And again, we don’t know how these cases were selected. Maybe the defense had no choice on what cases to move against.

But the defense can always pick the grounds for its motions.

Half of the defense wins in Aredia-Zometa were on specific causation, and another win came about solely due to a peculiar Florida regulatory compliance statute.

What that means is that, on learned intermediary rule/warning causation arguments, the defense went 1-6. That’s not very good, no matter what the standard. In five of the six losses (all but Hogan), we’re not sure what the point of raising warning causation was. In those five losses, the nature of the prescriber/treater testimony (at least as described in the opinions) was such that we can’t honestly say the defense deserved to win on warning causation. If the doctor stops or radically alters treatment after learning new information, then that doesn’t have the look of a winning motion.

We feel about learned intermediary motions the same way that we felt about preemption motions before the Supreme Court’s trilogy. As long as our judicial system runs on stare decisis, we need to take care to bring motions only on grounds that have a decent shot at winning. Leaving a bunch of adverse decisions on the books, as happened in Aredia-Zometa, doesn’t help either the defendant in that particular case, nor nor does it help the defense cause generally.

Basically, defense lawyers have to pick their spots and bring motions that develop the law as favorably to our clients as humanly possible. That means, as they say in Chicago, “don’t back no losers.” The proof is in the precedent. Right now we’d have to say that the defense is doing a good job of this in Zyprexa and not so good a job in Aredia-Zometa.