There is a lot of prescription drug/device litigation in state court (or at least some state courts) in both Pennsylvania and New Jersey. That’s because, over the years a lot of large manufacturers have chosen to locate here for what we assume to be a host of good and legitimate business reasons.
But the litigation
When we read about a personal injury claim concerning a drug or device, we expect that the claim will be made by a patient. Khoury v. Philips Medical Systems, 2010 WL 3119902 (8th Cir. Aug. 10, 2010), has a certain man-bites-dog quality because the plaintiff is a doctor who was allegedly injured by a
Judge Posner’s opinions are usually right and, even more usually, brilliant. It’s no surprise we’ve blogged about them so often. (For example, here, here, and here.) We could probably count the posts, but we’ll go with the “one, two, and many” formulation and acknowledge that today is the “many-th” time we’ve addressed a fan letter to Chicago. On Friday, we briefly posted on the case of Robinson v. McNeil Consumer Healthcare, No. 09-4011, Slip Op. (7th Cir. Aug. 11, 2010), where, in an opinion penned by Judge Posner, the Seventh Circuit held that the FDA’s decision not to add a warning to Children’s Motrin was preemptive. Because it’s a Posner opinion, it’s laden with other goodies.
Let’s begin with the facts, which are unspeakably sad. Mrs. Robinson bought Children’s Motrin for her child. Before she did so, she read the label, which said, among other things, “Stop and see a doctor if an allergic reaction occurs.” Several months later, Mrs. Robinson took the Children’s Motrin for her headache. When she awoke the next morning, she noticed a rash on her chest. That night, she took more of the Motrin. She did not reread the warnings. The next morning she went to her doctor, who gave her allergy medications. She told him she had taken Children’s Motrin; he did not react. The rash got worse, not better, sprouting blisters. That night, Mrs. Robinson took more of the Motrin, again without reading the warnings. The next morning, with “her condition deteriorating rapidly,” she went back to her doctor. Robinson, Slip Op. at 3. This time, her doctor diagnosed her with a severe form of Stevens-Johnson syndrome (specifically, “SJS/TEN”), a rare, life-threatening disease. Mrs. Robinson survived, “but sixty percent of her skin sloughed off, and she lost the vision in one eye and has only limited vision in the other … she is expected to go blind eventually.” Id. at 4.
Posner understates things when he says these are “unhappy facts.” Id. It would be hard to find anyone — including any juror — who wouldn’t feel enormous sympathy for Mrs. Robinson. At trial in a case like this, a defense lawyer needs to model for the jury how to express sympathy while still supporting a defense verdict. In fact, it seems that the defense counsel in this case managed to do exactly that, though one expression of sympathy created a thorny issue on appeal. More on that later.Continue Reading There’ll Always Be Posner — Part “Many”
It always seems to happen – even with a site recommended by the Supreme Court’s own website. In our users’ guide post last week to the defense-side (we’ll stay away from jargon like “top” and “bottom”) briefs in the Bruesewitz Vaccine Act preemption case, we missed one – the Chamber of Commerce’s amicus brief.
We’ll have a full review of Robinson v. McNeil Consumer Healthcare, No. 09-4011, slip op. (7th Cir. Aug. 11, 2010), on Monday, but there’s one part of it that’s too important to wait for then. In Robinson, which involved the OTC drug Motrin, the plaintiff argued that the label should have been revised to
Remember the legal spat a couple of years ago when plaintiffs’ expert David Egilman engineered the leaking to the press of a bunch of documents subject to a protective order? We do, since we covered it extensively. Well, as readers of those prior posts know, Judge Weinstein didn’t take too kindly (although we would have gone even further) to this flouting of his orders and entered sanction.
Well, today the Second Circuit affirmed those sanctions in an appeal filed by James B. Gottstein, one of the intermediaries that Egilman used in his little stunt:
We agree with the district court that Mr. Gottstein’s actions in acquiring and disseminating certain of these documents involved his aiding and abetting a violation of the court’s protective order through the use of sham subpoenas. The district court had the power to enjoin Mr. Gottstein in these circumstances.
Eli Lilly & Co. v. Gottstein, No. 07-1107, slip op. (2d Cir. Aug. 12, 2010).
Here are the facts of the sorry episode, as the Second Circuit described them:
The present appeal arises from the flouting of a protective order entered in high-stakes litigation concerning Eli Lilly Co.’s anti-psychotic drug, Zyprexa. David S. Egilman, a plaintiff’s expert witness and signatory to the protective order, received confidential documents produced by Eli Lilly. Finding much to dislike in the content of those documents, Egilman wished to distribute them to the media. Not wanting to release the documents to the public in a manner brazenly in disregard of the protective order, he needed a suitably minded individual to act as his partner and to subpoena those documents. Egilman contacted New York Times reporter Alex Berenson, who put him in touch with Alaska attorney and mental-health advocate James B. Gottstein, who readily agreed to help. Gottstein, who was not a signatory to the protective order, intervened in an unrelated Alaskan guardianship case, which he used to generate subpoenas purporting to require Egilman to produce all documents in his possession pertaining to Zyprexa. Failing to abide by the terms of the protective order, Egilman distributed a large volume of documents to Gottstein, who in turn copied and forwarded them to a variety of other interested parties. The next day, the Times began a series of front-page articles based on the information contained in those documents.
Slip op. at 2-3.
Among other things, Gottstein got his himself enjoined. He appealed. The Second Circuit’s opinion affirmed “in all respects.” Slip op. at 3.Continue Reading Zyprexa – Second Circuit Affirms Sanctions for Disclosing Protected Documents
Back in 2008 and 2009 we posted several times about the pendency of changes to FAS – 5 (that’s the “Financial Accounting Standards Board, Statement No. 5” for long), having to do with what companies must disclose publicly about ongoing “loss contingencies.” “Loss contingencies” include, among other things litigation. And litigation, of course, includes mass torts in which our clients are sued.
The problem with the proposed additional disclosure requirements, of course, was that they would affect the very litigation about which they reported – any similarity between FAS – 5 and the Heisenberg Uncertainty Principle being, we guess, “remote” (but knowing accountants, that statement may have to be qualified).
What effect could a bunch of boring accounting stuff have?Continue Reading FAS – 5: Heightened Corporate Disclosure No Longer Remote
We love being right. We especially love telling the plaintiffs’ bar that we told ya so. Now can we finally drive a stake through these off-label marketing RICO cases brought by third-party payors (TPP)? (probably not, but we can keep hoping).
The latest crash-and-burn RICO TPP class action comes courtesy of the Southern District of
Faithful readers of this blog may avert their eyes when they see a new post about removal, one of our favorite topics (36 posts and counting). Not another post about fraudulent joinder of in-state defendants or, worse yet, pre-service removal! We can understand that some of you may want to say to us about removal
Don’t get us wrong. We’re delighted to practice drug-and-device law. It’s an important, interesting, and dynamic field, and we’d never think of abandoning it. At cocktail parties people gather around and chat with us about the latest mass tort. (We hang out with a nerdy crowd.) By contrast, the ERISA, tax, and structured finance lawyers linger in the corners alone, staring glumly into their chardonnay.
And yet, law school geared us up for a very different array of cases. We were looking forward to helping folks sort out who got to keep the fox carcass. For that matter we figured that animals would figure in lots of our matters: the mouse in the soda bottle, the surprisingly and suddenly pregnant cow, and the sheep pitched overboard in the storm. And we thought we’d be dealing with an even odder menagerie of people, including the hapless lady concussed at the train station and the extraordinarily frisky old guy in Florida. We were even ready to navigate the Rule in Shelley’s Case.
Truth be told, if we ever really did encounter those old legal chestnuts, we’d risk serious malpractice, like the William Hurt character in Body Heat. One of our few fond memories of law school is recommending that movie to our trust-and-estate professor because its action hinged on the Rule against Perpetuities. He made the mistakes of taking our advice and taking his wife to the theater. Professor and spouse were both disappointed and astonished by the film’s focus on the carnal rather than the legal.
Dang it all, couldn’t we please handle some trover and replevin, for old times’ sake?
Well, it turns out that we can. We blogged a little more than a year ago about the case of Hunt v. DePuy Orthopaedics, No. 03-900 (RWR), 2009 U.S. Dist. LEXIS 61644 (D.D.C. July 20, 2009). Plaintiff in that case underwent hip replacement surgery in 1994, and that surgery apparently didn’t work out so well. In 1999, Plaintiff underwent a repair surgery during which the original implant was removed. After the 1999 surgery, a DePuy representative received permission to take the original implanted hip device. In 2003, Plaintiff asked for return of the explanted hip. DePuy did not return the hip. Later that year, Plaintiff sued DePuy for breach of express warranty (that the hip would last “25 years to life”), breach of implied warranty, and – ta da! — replevin.Continue Reading Abandon Hip