Last week we surprised even ourselves by including Judge Weinstein’s December 1 Zyprexa decision as one of top ten best decisions of 2009. That opinion concluded, albeit reluctantly, that Mississippi’s claims could not be adjudicated on a mass basis. Even Judge Weinstein acknowledges that sometimes (we would say more than sometimes) issues of causation, injury, and reliance need to be considered on an individual basis.
In a pair of newer summary judgment decisions, Judge Weinstein considered these types of issues on an individual basis. These show how incredibly weak plaintiffs’ claims can be in the Zyprexa litigation. Both plaintiffs claimed that the company had failed to warn that the drug could cause weight gain and diabetes. Both cases were thrown out on summary judgment. And it wasn’t even close.
In both decisions — 2009 U.S. Dist. Lexis 117777 (E.D.N.Y. Dec. 10, 2009) and 2009 U.S. Dist. Lexis 117778 (E.D.N.Y. Dec. 10, 2009) – Judge Weinstein begins (as usual) by furnishing his stock summary of the course of the Zyprexa litigation. That summary highlights many of the problems inherent in mass tort MDLs, such as:
- complexity and expense
- massive, asymmetrical discovery
- “quasi-class actions”
- opportunistic, parasitic actions
- ample, one-sided press coverage
- settlements that don’t end the case but, rather, invite endless dumping of new cases into the MDL
- etc. (And there’s a lot in that “etc.”)
- who never used the drug or device
- whose usage was so de minimus as to preclude any rational finding of causation
- who are not injured at all
- who had the injury before they ever used the drug or device
- who knew or should have known of the bases of their claims so long ago that every statute of limitations in the country has run
- whose treaters were learned intermediaries making a conscious risk-benefit decision, and such decision would be unaffected by whatever purple prose the plaintiff thinks should have been crayoned into the warnings
- who are homicidal, prone to serial child-molesting, or already in jail. (You probably think we just threw that in to see if you were really following along. But no, that’s something we’ve actually seen in MDLs.)
In the end, we like these December 10, 2009 decisions. We just wish they could have come a couple of years earlier, and without all the need to waste discovery resources on cases that never should have been filed in the first place.