Not too long ago, one of our plaintiff-side readers (who probably wishes to remain nameless) sent us an opinion he had won in the Aredia/Zometa mass tort.  We put it on ice for a bit, because being defense lawyers, we weren’t going to publicize a plaintiff win of any sort unless it first got reported elsewhere or was certain to be.  That’s happened.  The opinion is now at In re Aredia and Zometa Products Liability Litigation, 2010 WL 813459 (M.D. Tenn. March 3, 2010).

We’ve read it over a couple of times, and we’re still rather confused.  But that’s OK.  Everybody else is scratching their heads, too.

It’s one of those quirks of MDL practice, a federal court in Tennessee asked to give an authoritative opinion on a state statute in Florida – when the Florida courts essentially silent.  What came out is a model of obfuscation, in a number of ways.

Background:  In 1999, the Florida legislature passed Fla. St. Ann. §768.1256(1), providing for a presumption of non-defectiveness where there was compliance with government product standards.  Specifically:

In a product liability action. . .there is a rebuttable presumption that the product is not defective or unreasonably dangerous and the manufacturer or seller is not liable if, at the time the specific unit of the product was sold or delivered. . .the aspect of the product that allegedly caused the harm:  (a) Complied with federal or state [enactments] relevant to the event causing the death or injury.

In the A&Z MDL, this statute had come up once before in In re Aredia & Zometa Products Liability Litigation (Emerson), 2009 WL 2497229 (M.D. Tenn. Aug. 13, 2009), an opinion we previously mentioned in passing here.  The defendant established the necessary FDA compliance in Emerson and therefore invoked the statutory presumption.  The plaintiff, needing something to rebut the presumption, argued fraud on the FDA.  That wasn’t very bright, as such arguments tend to be preempted under Buckman.  It was especially not bright given that this MDL happens to be in the Sixth Circuit, and the Sixth Circuit has already held that Buckman preemption extends to attempts to avoid compliance defenses.  Garcia v. Wyeth-Ayerst Laboratories, 385 F.3d 961 (6th Cir. 2004).  Thus, Emerson became another entry that we were only too happy to add to our drug preemption scorecard.

Having won once, the A&Z MDL defendant made similar motions against a bunch of other Florida plaintiffs, setting the stage for a battle royal over the meaning of the Florida statute – which hasn’t been interpreted by any court (as far as we can tell) in ten years since it was enacted in 1999.

Big let down.  Have you ever seen one of those “[so and so] went [someplace] and all I got was this lousy T-shirt” T-shirts?  Well that’s what we feel like after reading the latest opinion.  Win or lose, it would have been useful to have a little more direction.

About the only thing we can say for sure is that the second time around, the plaintiffs were more creative than in Emerson.  How creative?  That’s part of the frustration we have with this opinion – it doesn’t say.  All we know is that “[p]laintiffs make far more than one argument concerning rebutting the statutory presumption” and, we’re told, “offer a myriad of evidence in support of their position.”  Slip op. at 3-4.

We guess you had to be there.

In general, the plaintiffs argued “they can rebut this presumption by showing that these products were defective and unreasonably dangerous.”   Slip op. at 3.  That’s not terribly helpful, either.  One can rebut a presumption of non-defectiveness with unspecified evidence of defectiveness.  How profound.  That could be anything from a truism to an attempt to nullify the statute.

The opinion also makes it seem that the defendant wasn’t much more helpful, stating “Defendant contends that Plaintiffs do not proffer the type of evidence required to overcome the presumption, but Defendant never identifies what type of evidence it contends that would be.”  Slip op. at 4.

If that’s really all there was, it sounds like the “B side” (we’re dating ourselves) of the nullification argument.  On the one hand, if all it takes to “rebut” a presumption of non-defectiveness is the same evidence of defectiveness that a plaintiff would have to put on anyway to meet the normal burden of proof, then the presumption means nothing.  On the other hand, if none of a “myriad” of evidence can rebut the presumption, than it’s no longer a “rebuttable” presumption, and “rebuttable” has to mean something.

So the answer has to lay somewhere in the middle, right?

Unfortunately, the opinion is so stingy with both analysis and description, that we are left having no idea where that middle ground might be:

The Court finds that Plaintiffs have offered proof sufficient to avoid summary judgment on this issue. The statutory presumption will apply at trial, but Plaintiffs have sufficiently raised genuine issues of material fact as to their ability to rebut that presumption. A jury will have to determine whether the presumption has been overcome in each case.

Slip op. at 4.  As outside observers, this “analysis” tells us next to nothing.  How does the presumption “apply”?  What are the “genuine issues of material fact”?  No idea.  If we stretch the language a bit, we can interpret the last sentence about a “jury will have to determine” as meaning that the court has found that the presumption is not the “bubble burst” sort and will be charged to the jury as long as there is an issue of fact.  See Schultz v. Ford Motor Co., 857 N.E.2d 977 (Ind. 2006) (reaching similar result under Indiana compliance presumption statute).  But who knows.  It’s not even certain that the jury charge issue was before the court.

As far as illuminating the presumption itself, Aredia/Zometa hath labored mightily and brought forth rather less than a mouse.