Photo of Stephen McConnell

While strolling on the boardwalk at the Jersey Shore this Summer, we saw the usual array of tacky t-shirts: Sopranos, Yankees (yuck), and lots of silly double entendres. This time, we also saw a t-shirt that said “Come at Me Bro.” Having no idea what that meant, we turned to the ultimate authority on popular culture, our teen-aged daughter. She informed us that the phrase refers to a witticism uttered by a cast member of the MTV show, “Jersey Shore,” whenever another seaside mesomorph adopted a belligerent pose. “Come at Me Bro” is a prelude to a tussle. That t-shirt came to mind when a plaintiff-oriented blawg picked a fight with us recently.
A week ago we posted about a plaintiff-side motion in the Aredia-Zometa MDL to undo a confidentiality/protective order. Our point was that the relief sought was extreme and unjustified, and that plaintiff lawyers occasionally (okay — usually) abuse the confidentiality process by multiplying work and co-opting the press.

On Thursday, the Drug Recall Lawyer Blog took issue with our “articulate rant,” arguing that the defense side creates pointless and expensive work because greedy defense lawyers get paid no matter what, while angelic plaintiffs “want to get from Point A to Point B as quickly as possible” because their lawyers only “get paid for success.” Not content to stop there, the other side’s rant-against-our-rant goes on: “making documents public that show what drug companies are actually doing may serve plaintiffs’ lawyers’ interests but it also serves the public good. If you are taking a drug and the manufacturer has documents showing they are burying studies that reveal the drug has risks not fully disclosed, isn’t it a good thing if the patient and the doctor read about this in The Washington Post?”
Long ago, as young associates a little too well acquainted with Ramen noodles, we were taught that every reply brief followed the same pattern: (1) here’s what we showed in our opening brief, (2) here’s what the opponent couldn’t even dispute, and (3) here’s why our opponents’ few coherent points miss the mark. Let’s try that out here.
First, our point was that the plaintiffs in the Aredia-Zometa litigation were basically going back on a deal, that the relief they sought was outrageous and overbroad, and that some plaintiff lawyers abuse the confidentiality process.
Second, the Drug Recall Lawyer Blog doesn’t even dispute any of our main points. They don’t argue that anything supports the plaintiffs’ overly-ambitious motion in the Aredia-Zometa case. Indeed, in what is a remarkable concession, given the source, the Drug Recall Lawyer Blog admits that “[t]here is some measure of truth to almost the entire post.”
Third, the claim that defense lawyers seek to jack up the costs of litigation is out of date, and the claim that the public benefits from selective dissemination of internal documents is more than a tad self-serving.
There may have been a time when mass tort litigation was a war of attrition. But plaintiff lawyers got very good very fast at combining resources and coordinating attack angles. To deny that the playing field is now level is to deny reality. Almost a decade ago, a local court observed:

Plaintiffs claim that it is “David versus Goliath.” This argument however is a tad disingenuous. . . . [P]laintiffs are represented by a nation-wide consortium of more than sixty well-financed law firms. There thus really does not appear to be a significant financial disparity in the parties’ ability to finance these putative litigations. Thus, what this Court and other courts similarly situated are faced with is “Goliath versus Goliath.”

Arch v. American Tobacco Co., 175 F.R.D. 469, 496 n.28 (E.D. Pa. 1997), aff’d, 161 F.3d 127 (3d Cir. 1998).
Our clients — even those perched in the Fortune 500 — are sensitive about cost-containment. Efficiency is the watchword everywhere. Many drug or device companies have executives sitting in foreign capitals, and they view the American litigation system as an exercise in excess and madness. And they are mostly right. They do not smile upon high legal bills. Neither do their insurers. It’s been years since we heard clients treat litigation as an arms race. Meanwhile, we don’t know any defense lawyers who fly in private jets. We know plenty of plaintiff lawyers who do. A lot of clients don’t even want us flying first class. No hard feelings, by the way. Congratulations on your success. But don’t keep peddling a David-and-Goliath sob story that’s something out of the last century.
The fact is that neither side wants to increase its own costs. Defendants have a hard time increasing the plaintiffs’ costs without increasing their own at least as much. For example, case specific discovery requires both sides to show up at depositions, review documents, etc. But plaintiffs’ lawyers have mastered the art of increasing defense costs while limiting their own. Asymmetrical discovery costs – something we’ve complained about before – have become the rule in aggregated litigation, and the confidentiality process is merely one example. We have been in cases where plaintiffs insist on the production of enormous electronic databases, and after getting them, it turns out that plaintiffs don’t even look at them. What is that if not pure “sport” and sadism? Anyway, the Drug Recall Lawyer Blog says that it wouldn’t have had a problem with our post if “it would have had something thrown in there about the fact that defense lawyers are far more guilty of this than plaintiffs’ lawyers. Because, believe me, it is undeniable.”
Er, no. It is deniable. In fact, we’re denying it right now. Come at us, bro.
We agree that defense designation of confidential documents is seldom flawless, and if it’s a close call we’re going to err on the side of confidentiality. But that practice doesn’t emanate from malice or an aim to increase costs. The process isn’t perfect, and nobody wants to make an irrevocable mistake. That kind of toothpaste is awfully hard to get back into the tube.
Even so, sometimes confidential or privileged documents get disclosed. When that happens, we don’t hear plaintiff lawyers complain about the imperfection of the process. Instead, they gloat. And by the way, when plaintiffs successfully challenge confidentiality designations, it’s neither a happy nor inexpensive moment for the defense. Nobody – especially the clients who foot the bills – likes being ordered to go back through God knows how many documents a second time. Believe it or not, we want to get it right. As a matter of practicality, that criticism is all wet.
The other side’s propaganda is just as baseless. There is no merit whatsoever to the suggestion that the public benefits when plaintiff lawyers strategically hand discovery documents to the press. Those documents almost never contain anything that the FDA hasn’t seen. Rather, those “hot” documents consist of some individual expressing a personal opinion as part of a debate. Debate in science is good. But it’s not a good thing for a litigant to select one side of the story and present it to the press as if it were some corporate admission of scientific fact. The Zyprexa litigation is a notorious case in point, featuring the deliberate violation of a discovery order to plant an unfavorable story in the New York Times. But as Judge Weinstein concluded – yes, on or off label it was an effective drug:

“Numerous articles in medical journals and periodicals have reported off-label uses of atypical antipsychotics; some have endorsed such uses.” In re Zyprexa Products Liability Litigation, 671 F. Supp.2d 397, 415 (E.D.N.Y. 2009).
An extensive list of the uses (on- and off-label) for which atypical antipsychotics have become “first line agents.” Id.
“Atypical antipsychotics are routinely prescribed off-label.” Id.
“Even for those medications associated with an increased risk of metabolic side effects the benefit to specific patients could outweigh the potential risks. For example [a drug] has unique benefits for treatment refractory patients and those at significant risk for suicidal behavior.” Id. at 423 (quoting ADA consensus statement).
“[Defendant]. . .has created a product with substantial benefits that even now – after many years of litigation, research, testing, and controversy – is still favored by many physicians and patients. . .for some of the most serious psychological conditions that afflict millions of people worldwide. Courts cannot ignore the substantial benefits accruing. . .from use of [the drug]. . .[which] [p]revent[s] users with serious mental problems from requiring hospitalization. . .and allow[s] them to become productive taxpayers and participants in the economy.” Id. at 462.

Biased, one-sided press-accounts based upon documents selectively disclosed by the other side don’t do the public any favors.
Maybe there was a person in a particular company who thought some piece of data meant a drug’s label should be revised, but so what? Especially so what if other people at the company disagreed and — here’s the important point — the FDA saw the same data and didn’t ask to revise the label. It’s as if somebody pondered whether to eat that second donut, decided not to, and then got written up in The Washington Post for gluttony.
Let’s focus for a moment on the gist of the Drug Recall Lawyer Blog’s critique of our position. It doesn’t deny our point that plaintiff lawyers game the confidentiality system. Instead, it says that defense lawyers engage in even more gamesmanship. The title of the post is “Pot Calling the Kettle Black.” We looked that saying up. Variants appear in many languages. Some are catchy. Some aren’t:

  • Spain: “Move away, you are blackening me, said the pan to the pot.” [Pretty close.]
  • Wales: “Look at home.” [Sort of wistful. No wonder Dylan Thomas was such a good, but melancholic, poet.]
  • Portugal: “The pig talking about the bacon.” [Not that inspiring. But we love bacon.]
  • Argentina: “The dead guy laughs at the one with the throat slit.” [Too terrified to comment on that one.]
In some variants, the pot is black and it sees its reflection in a copper kettle. So the pot (that would be us) is black, but the kettle (hero plaintiff lawyer) is not. But in most versions both the pot and kettle are black. It’s pretty clear that’s the operative version here. It’s really a charge of hypocrisy. As the late Judith Shklar wrote, hypocrisy is a quintessentially modern vice. It’s a name hurled back and forth between parties who don’t occupy a common moral ground. It doesn’t bother with the underlying merit of the conduct at issue; it simply says that you aren’t consistent with your own stated values. It’s a rather hollow response. If somebody is doing something terrible, they should be criticized for doing something terrible — not just because they are being inconsistent with their promise not to do terrible things.

Forget the smokescreen. It’s important to focus on the underlying vice. Here, it is that the confidentiality process is expensive and abusive. The Drug Recall Lawyer Blog seems to agree. As we said originally, this is, to steal another phrase from Jersey Shore, a “situation.” It needs to be addressed. And it requires some trust and cooperation between the parties, as well as some innovative thinking. So we’ll end with, if not quite a kumbaya moment, at least some hope for reason and reconciliation. (Two things that we hear are pretty much absent from “Jersey Shore.”)