SCOTUS short-lists are sort of like Golden Globe ceremonies or TMZ episodes for law nerds like us. We get giddy when the Sunday talking heads gush about the likely candidates, or warn about who’s out of the mainstream and might provoke a filibuster. One of the short-listers is Diane Wood, a judge on the Seventh Circuit Court of Appeals. There would be a certain symmetry if she replaced retiring Justice John Paul Stevens, who was also on the Seventh Circuit.
We’ve seen some reports labeling Judge Wood as a “liberal”. For those of us who took courses with her at the University of Chicago Law School, that label is surprising. Professor Wood seemed down-the-middle and devoid of ideology (which ain’t easy at U of C). In any event, we decided to see what Judge Wood has written on topics that occasionally show up in our happy little blog. There isn’t much, but what we’ve seen looks solid. (Take that, talking heads!)
Lack of Causation: Schrott v. Bristol-Myers Squibb
Judge Wood’s only opinion regarding medical devices, Schrott v. Bristol-Myers Squibb, 403 F.3d 940 (7th Cir. 2005), involved a woman who alleged that breast implants caused her to suffer headaches, dizziness, nausea, and memory loss. Plaintiff’s doctor had told her that her neurological symptoms were unrelated to the breast implants. That doctorly advice did not stop plaintiff from suing Bristol-Myers Squibb for strict liability, negligent failure to warn, breach of implied warranty, negligent infliction of emotional distress, and violation of the Illinois consumer fraud act.
As a threshold matter, Judge Wood thought it “frivolous” of plaintiff to argue that the Daubert standard should not be applied to her expert because (1) the claim arose before Daubert was decided, and (2) it was based on state law claims. Schrott, 403 F.3d at 943. Judge Wood cited Hanna v. Plumer, 38 U.S. 460 (1965). No surprise there, but it made us feel nostalgic (like when “Don’t You Want Me Baby” by Human League comes on the radio) since some of us learned about that case in a Civ Pro course taught by Professor Wood in the 1980’s.
Judge Wood also saw little merit in plaintiff’s efforts to get around the statute of limitations (via relation back, discovery rule, and continuing violation theory). Judge Wood doesn’t actually explain why these arguments fail – – but that’s okay because we never buy those arguments and, anyway, the “even more fundamental problem” with the case was that the record showed no causative link between the implants and injury and no basis to recover for “fear of developing cancer” because there was no evidence such fear was reasonable. Schrott, 403 F.3d at 943-44.
Similarly, Judge Wood held that the Illinois consumer fraud claim flunked causation and pretty much everything else: (1) there were no damages, (2) the package inserts disclosed the medically relevant risks, (3) the medical community knew of the risks, (4) the plaintiff’s doctor knew of these risks, and (5) plaintiff “did not show what causal link existed between the disclosers (or omissions) and her damages.” Id. at 944-45.
Maybe we’re just fanboys, but it looks like Judge Wood hit all the right issues in all the right ways.
The Sophisticated Intermediary: Taylor v. Monsanto
We write a lot about the learned intermediary doctrine, usually focusing on doctors or other health care providers. Judge Wood addressed the “sophisticated intermediary” doctrine in Taylor v. Monsanto, 150 F.3d 806 (7th Cir. 1998). Westinghouse employees sued Monsanto for alleged effects of PCBs that Monsanto had sold to Westinghouse. Judge Wood’s opinion starts with a nice turn of phrase: “At least to the outside observer, some cases appear to be unevenly balanced clashes between a titan of industry and a hapless individual. This case is not one of them.” Taylor, 150 F.3d at 807. We wouldn’t mind using that line in the next trial where we’re facing plaintiff lawyers who have not only their own jet but also their own airstrip.
Back to the case. Under Indiana law, there is no duty to warn the ultimate user if the product is sold to a “sophisticated intermediary” whom the manufacturer adequately warned. The key issues in the case were whether Monsanto breached a duty to Westinghouse’s employees or, rather, whether “Monsanto reasonably relied on Westinghouse itself to warn its employees of the damages associated with PCBs, and that Monsanto’s warnings to Westinghouse were adequate.” Id.
In drug and device cases, it’s usually straightforward whether the doctor (or whoever) is a learned intermediary. It’s simply a matter of status. Not so with a “sophisticated intermediary.” That issue can require a more probing inquiry into knowledge or experience, not just status. Judge Wood found that Westinghouse was a “sophisticated intermediary” with respect to its employees because Westinghouse had participated in federal and industry task forces and working committees about PCBs.
Judge Wood rejected plaintiffs’ attempt “to fine-tune” the sophisticated intermediary doctrine and render Westinghouse sophisticated only as far as environmental risks but not human safety risks. Taylor, 150 F.3d at 808-09. Plaintiffs “failed to point to a shred of evidence in the record suggesting that Westinghouse was ignorant or unsophisticated about the health effects of PCBs.” Id. at 809. Instead plaintiffs “relied on conclusory and self-serving allegations unsupported by the record, which do not preclude summary judgment.” Id.
Because Westinghouse was a sophisticated intermediary, the issue now was whether Monsanto had warned Westinghouse. Judge Wood alluded to “reams of uncontroverted evidence in the record that Monsanto consistently warned Westinghouse about PCB dangers,” going back as far as 1959. Id. Plaintiffs claimed that in 1975 Monsanto assured Westinghouse in a letter that there had been no human harm in 40 years of proper PCB handling, which was the “wink” from Monsanto assuring Westinghouse that PCBs were safe. Id. at 810. Unfortunately for plaintiffs, Judge Wood read the rest of the letter, which was replete with warnings of injury and death. Id.
Failure of Formulaic Pleadings: Brooks v. Ross
This past fall, Judge Wood worked with our favorite duo (not counting Batman and Robin or Sonny and Cher), Iqbal and Twombly, in deciding a
§ 1983 due process case, Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009). Plaintiff had been the only member of the Illinois Prison Review Board who had voted in favor of a particular prisoner’s application for parole. Plaintiff was subsequently indicted for corruption and ultimately acquitted. Plaintiff became a plaintiff when he sued people (including a state policeman, the Illinois Attorney General, and other Prison Review Board members) whom he claimed had conspired to prosecute him wrongfully. This, friends, is a true Chicago story.
Judge Wood found the plaintiff’s complaint similar to the alleged conspiracy in Twombly and held that vague allegations of conduct not inherently illegal cannot survive the pleading requirements of Twombly. Brooks, 578 F.3d at 581-82. Judge Wood then gave us a two-fer by measuring the complaint against Iqbal, concluding that the allegation that the defendants committed illegal conduct by “knowingly, intentionally, and maliciously prosecut[ing] Plaintiff . . . in retaliation for Plaintiff . . . exercising rights and privileges under the Constitutions and laws of the United States and State of Illinois” was “merely a formulaic recitation of the cause of action and nothing more.” Id. at 581.
This case is a straightforward application of Twombly and Iqbal, even if the facts evoke The Shawshank Redemption. Indeed, none of these cases is likely to crop up if there are confirmation hearings, and none will make the nattering nabobs on Fox or MSNBC chortle.
And that’s reassuring.
(We’re grateful to Erin Carter at Dechert for reviewing Judge Wood’s Greatest Hits)