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.
After a six day trial, the jury found McNeil negligent and awarded $3.5 million in compensatory damages. But the jury also found Mrs. Robinson contributorily negligent. Because the trial judge ruled that Virginia law governed the case, and because Virginia is one of the very few states where contributory negligence is a complete defense, the trial judge entered judgment for McNeil.
Now a more pedestrian appellate judge might author a short, workmanlike opinion. Mrs. Robinson lived in Virginia when she took Children’s Motrin and when she took ill. Seems like a simple choice of law and a simple result. The jury’s finding of contributory negligence was sustainable in light of Plaintiff’s persistent ingestion of the medicine in the face of clear symptoms and clear warnings. But Posner explores policy considerations in a way that is interesting and that takes up a fair amount of ink.
Choice of Law
After her diagnosis, Mrs. Robinson moved to Illinois. She filed her lawsuit in Illinois state court. McNeil removed to federal court. Illinois choice of law controls, and it employs the “most significant relationship” test. The injury occurred in Virginia. Nevertheless, Mrs. Robinson argued that Illinois law should apply because “the injury is a continuing one.” Id. at 6. Choice of law is a big deal here, because Illinois law does not apply contributory negligence. Instead, it applies comparative negligence, which merely reduces the damages awarded the plaintiff unless the plaintiff’s negligence exceeds the defendant’s. (Also, as we’ll see later, Virginia law does not provide for strict liability in product cases.)
Plaintiff argued for Illinois law because her injury was ongoing when she moved to Illinois. Posner rejects Plaintiff’s “continuing injury” theory on the common sense ground that the “lingering or worsening of an injury over a considerable period is common in personal injury cases, rather than an exceptional circumstance that might justify a departure from the ordinary principles of law.” Id. This case didn’t involve an instance of latent injury, which might have presented a trickier issue if ingestion took place in one state but the symptoms cropped up in another state. As it was, Posner stuck to the lex loci delicti presumption, because any other rule would facilitate forum-shopping. Most plaintiffs would be able to move out of a defense-friendly state (ala Virginia) and move to a plaintiff-friendly state (Illinois or — egad! — West Virginia). (We wouldn’t want to overstate this. Even in this increasingly mobile society, moving isn’t a trivial exercise.) Accordingly, Virginia law applies and contributory negligence “dooms” Mrs. Robinson’s case. Id. at 8.
Comparative Negligence
Posner treats us to a bit of a frolic and detour by demonstrating that the result would be the same under Illinois comparative fault law. It really is unnecessary and it’s as if Posner believed that anything he writes is inherently interesting and useful. And he’s right.
For those of you who took the Economic Analysis of Law class, this will sound familiar. Posner says that comparative fault looks at whether one of the parties could have avoided the accident at a lower cost than the other. Id. at 9. In this case, it would have been expensive for McNeil to take the drug off the market. Even Plaintiff’s lawyer disavowed that outcome. It also would have been expensive to restrict Motrin as a prescription drug. Moreover, it’s up to the FDA whether a drug should be sold over the counter or via prescription. Id. at 13. Moreover moreover, even if Children’s Motrin was a prescription drug, Mrs. Robinson’s doctor would still have prescribed the drug for her child, as there was no applicable contraindication. Id. at 12-13. By contrast, Mrs. Robinson could have avoided the “accident” easily — by stopping usage of the Motrin at the first sign of the allergic reaction. (Some of you are saying maybe it was already too late. Not so, as will be seen below.)
Causation
The issues of negligence, contributory negligence, causation, and warning intersect. Whether there was negligence and whether the warning was adequate depend upon the risks actually presented by the medicine. Posner points out that Children’s Motrin does not appear to pose a danger of allergic reactions “that is greater than is created by drugs that might be substituted for it.” Id. at 10. The prevalence of SJS/TEN is very small and shows an association, not causation. Id. at 11. The defense expert at trial testified that there was no causal association and, even if there was (she was clearly a well-trained witness) “one dose could not cause the disease.” Id.
Could a rational jury believe an expert who seemed to talk out of both sides of her mouth? (Er, yes — it happens all the time.) Is there a contradiction between saying a drug doesn’t cause a disease but, even if it does, it takes more than one dose? Posner says there is no inconsistency. He says it’s like opining a dog cannot walk on its hind legs but, if that’s wrong, a dog certainly cannot walk on its hind legs for an hour. Id. at 19. This shaggy dog story comes from the same judge who has poo-pooed reasoning by analogy. Posner, How Judges Think, pp. 180-91.
Warning
Since evidence of causation is weak in this case, it’s hard to prove need for a stronger warning. Further — and this what we discussed last Friday — the FDA decided not to require mention of SJS/TEN in the Motrin label. Even under Wyeth v. Levine, that’s a preemption defense. Posner goes further and injects a much-needed dose of reality. Plaintiff argued that the Children’s Motrin label should have been “really scary” and added a warning of “rash” and SJS/TEN. Id. at 16. But then every label “would have had to describe as well every other serious disease that might, however infrequently, be caused or even just arguably caused.” Id. at 14. That would lead to “informational overload” and would “make label warnings worthless to consumers.” Id. at 15. That is a nod to reality all too often absent from product liability warning cases. Posner also discounts Plaintiff’s contention that she wouldn’t have purchased the Motrin if the word “rash” had been added to the Motrin warning’s “allergy alert, ” which already lists “hives, facial swelling, asthma (wheezing), shock.” Id. at 16. We wish more courts would (1) insist that plaintiffs specify what their proposed adequate warning would say, and then (2) perform a direct comparison of that entire proposed warning with the actual warning. In context, warning causation often disappears.
To cap it off, Mrs. Robinson “didn’t read or remember the warnings before taking the Children’s Motrin, so it wouldn’t matter what the label had said unless it had contained truly terrifying warnings that the state of medical knowledge would not have justified.” Id. That little sentence would eviscerate most of the failure-to-warn cases currently burdening the judicial dockets.
Contributory Negligence
As we said before, anyone without a heart of stone would feel sympathy for Mrs. Robinson. Most of that sympathy is prompted by her terrible injuries. But part comes from a sense of there-but-for-the-grace-of-God. As Posner says, “a reasonable jury could not have found Mrs. Robinson negligent in taking the first dose.” Id. at 11. Put that together with the defense expert’s testimony that only one dose of Motrin could not have caused the SJS/TEN and the issue is Mrs. Robinson’s negligence in continuing to take Motrin after she experienced the allergic reaction.
When Mrs. Robinson went to her doctor, “he didn’t react to her telling him that she was taking the drug” and “he merely gave her drugs to combat the allergic reaction.” Id. at 17. He didn’t tell her to stop taking the Motrin. But Mrs. Robinson did not sue her doctor for malpractice and did not argue that her reliance on her doctor was reasonable — meaning that she was not contributorily negligent. In any event, Mrs. Robinson had already taken the second dose before seeing her doctor. That contributory negligence bars her claim under Virginia law.
This being a Posner opinion, there will inevitably be something to make the lawyers in the case wince. Here, Posner suggests that Plaintiff’s lawyer should have proposed jury instructions asking “the jury to determine whether she had merely failed to avoid avoidable consequences, rather than having been contributorily negligent.” Id. at 18. In other words, she could have argued that she was deprived of the opportunity to mitigate her damages. But if the jury believed the defense expert that the first dose alone could not have caused the SJS/TEN, then failure to request such a jury instruction likely made no difference. No harm no foul. And no reversal.
There was almost a big reason for the defense lawyer to wince. Plaintiff argued that the contributory negligence defense was barred because the defense lawyer made a judicial admission. What was the alleged judicial admission? In his closing argument, the defense said, “We are, of course, not blaming Karen Robinson for her own injuries. We never have. We never will.” Id. at 19. This statement is what we were alluding to earlier, about how a good defense lawyer must show sympathy for an injured plaintiff. But did this expression of decency really waive contributory negligence? Posner holds that it did not. Rather, it was an acknowledgement that Mrs. Robinson’s injuries were “disproportionate to her failure to exercise due care in consuming” the Motrin. Id. at 20. For an attorney statement to constitute a judicial admission, it should be “deliberate, clear and unambiguous.” Id. Otherwise, “[t]rials would be turned into minefields.” Id. Plus, the defense attorney needed to respond to Plaintiff’s lawyer’s assertion that “they [the defendants] blame her for being misled.” Id.
Whew! But be careful out there!
Warranty
Finally, Plaintiff argues that the trial court should have granted an amendment to the final pretrial order adding a claim under Virginia law for breach of warranty. Plaintiff’s lawyer had earlier dropped that claim because he believed Illinois law would apply and that he could pursue a strict liability claim. But when the trial court decided that the substantive law would come from Virginia — which does not recognize strict liability in product liability actions (Virginia law is mighty defense-friendly, isn’t it?) — Plaintiff’s lawyer sought to add back the warranty claim a few days before trial. Too late, said the trial judge.
And here comes the sort of words that make a Posner opinion so frightening for lawyers: “So the plaintiff dropped the ball, and if the fault was, as undoubtedly it was, her lawyer’s, she may have a remedy against him.” Id. at 21. Talk about wincing. We’re on the other side of the categorical “v.” and even we winced at that one. But when Posner taketh, he sometimes also giveth. He goes on to observe that a warranty claim would likely have been a stone cold loser. No need to call the carrier. It couldn’t seriously be argued that McNeil warrantied that Children’s Motrin would not cause SJS/TEN. And (as further evidence that legal issues in these cases frequently coalesce), “it would be odd to think that McNeil had a legal duty to guarantee against a risk that the FDA thought not worth warning against.” Id. at 22. If drug-and-device defense lawyers cannot go five minutes without blurting out the word “preemption,” there’s a reason for it.
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It’s another Posner tour de force. Everybody expects Posner’s opinions to offer wisdom and wit, but not everybody appreciates how tethered to reality they are. They reflect an understanding of how companies and consumers actually act. People think of Posner as a professor-scholar-judge, all vaguely aromatic of the Ivy Tower. But the final sentence of the Robinson opinion is the sort of thing a good trial lawyer would utter in the beginning of an opening statement, saying this case is about “plaintiff’s conduct in continuing to dose herself with Motrin after experiencing an allergic reaction that began shortly after she took the first dose.” Id. at 23. When you frame the issue the right way, the answers flow with the force of inevitability.
We’ve tried to quote liberally from Posner’s opinion to give you an accurate feel for it and because, let’s face it, his prose is way better than ours. As a public service, here are other examples of Posner’s rhetorical flourishes, some of which may find their way into your briefs. (Yikes, that sounds weird!)

• “But to make the continuation or exacerbation of an injury a basis for applying Illinois tort law to your case would open vistas of forum-shopping.” Slip Op. at 6-7.
• “There is also no evidence that if the risk from ibuprofen is greater, it is not offset by the drug’s therapeutic properties. Should aspirin be salable by prescription only? How about peanuts?” Id. at 10-11.
• “When a drug is claimed to cause the very symptoms for which it is a designated treatment, determining the direction of causation is difficult at best.” Id. at 11.
• “And anyway the warning about SJS/TEN, being directed to the physician and thus written in technical language, would mean nothing to her.” Id. at 13.
• “What would Mrs. Robinson have learned from reading such a warning?” Id.
• “The FDA decided not to require such a warning because it would confuse rather than inform; and a court cannot order a drug company to place on a label a warning if there is ‘clear evidence’ that the FDA would not approve it.” Id. at 22.
• “Although there is no defense of contributory negligence, as such, to breach of implied warranty, the consumer’s conduct is not irrelevant to the seller’s liability…. Even when a defendant’s liability is strict, as in implied warranty and strict products liability cases, a plaintiff who fails to avoid a danger that is either open, in the sense of visible, or obvious … or who misuses the product, is barred from relief.” Id. at 22-23.