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On this last day of the 2010, we’d like to wish our readers a happy, healthy, and prosperous new year.  To all our defense side readers, we further wish you success in winning your cases.

Now, because we are the Drug and Device Law Blog, we can’t just leave our post just at that.  Two things:

Yesterday the Montana Supreme Court, reaffirmed the learned intermediary rule, although holding that the duty to warn extended to all of the medical personnel – including nurses – who treated the plaintiff.  Stevens v. Novartis Pharmaceuticals Corp., DA 10-0029  slip op., at 30 (Mont. Dec. 30, 2010) (“[w]e concur with authorities who consider the learned intermediary to be the healthcare professional actually responsible for making decisions related to the patient’s care”).   It did so, however, in the context of ruling for the plaintiff on limiting the rule to prescribing physicians.

And aside from generally reaffirming the rule, Stevens is a not anything to be happy about this new year.  For one thing, it adopts cross-jurisdictional class action tolling, contrary to all but a couple of states.   That’s pretty bad – don’t let anybody tell you the Montana Supreme Court is “conservative” on tort issues.  It isn’t.


Point #2.  Full-blown chaos has developed in the Pennsylvania federal district courts on the Azzarello/Restatement Third issue – demonstrating, we think, precisely why stare decisis is a good idea.

Since we wrote our last post on the subject back in March, three more cases have been decided.  Two of them, Covell v. Bell Sports, Inc., 2010 WL 4783043 (E.D. Pa. Sept. 8, 2010), and Hoffman v. Paper Converting Machine Co., 694 F. Supp.2d 359 (E.D. Pa. 2010), did the right thing and followed applicable Third Circuit precedent – Covell on the admissibility of industry and governmental standards, 2010 WL 4783043, at *4-7, and Hoffman on feasible alternative designs. 694 F. Supp.2d at 365-66.

Then along comes this stinkeroo, Sweitzer v. Oxmaster, Inc., 2010 WL 5257226 (E.D. Pa. Dec. 23, 2010), where the court admits it’s result “may appear to be at odds with certain Third Circuit Court of Appeals case law” – that is to say Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38, 53 (3d Cir. 2009), where the Third Circuit, after an exhaustive review of Pennsylvania law, predicted that Pennsylvania would adopt the Third Restatement of Torts.

Sweitzer decides to ignore Berrier based upon such profundities as “that result has not materialized” and it has “not found any Supreme Court or Superior Court post-Bugosh decision that has applied the Third Restatement.”  Well, duh.  It hasn’t materialized – that’s why we refer to Erie predictions as “predictions.”  And sure, there isn’t any Pennsylvania state precedent – we’re still waiting on the Supreme Court, and the Superior Court, as a lower court, is bound – just as Sweitzer is supposed to be bound by Berrier.

But Sweitzer ignores the Third Circuit essentially because it’s uncomfortable with what the Third Circuit did in Berrier.  It’s decision to exclude industry standards evidence, 2010 WL 5257226, at *10-11, puts it in direct conflict with the earlier Covell decision.  Thus, we have chaos.  Despite an on-point Third Circuit decision, we have the spectacle of the Pennslyvania district courts running around like chickens with their heads cut off deciding the same issues willy-nilly based upon personal preferences without regard for binding precedent.

It’s obvious from the snide remark in Sweitzer – “Without addressing the question of whether or not Berrier amounts to excessive prognostication under Erie,” 2010 WL 5257226, at *4 – that this particular judge doesn’t think much of Berrier.  Whether or not Berrier was right, it’s binding.  Rather than descending into decisional chaos, however, the jurisprudential thing to do would be to certify the issue for interlocutory appeal.  Then the Third Circuit could kick the issue over to the Pennsylvania Supreme Court (like it tried to do in Berrier), and maybe this time the right court could decide once and for all what Pennsylvania law is.

Albus Dumbledore should have been a federal judge.  Sometimes courts have to choose what is right over what is easy.

So Happy New Year to all – and may the new year be an improvement on the old.