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Sometimes courts come out with rulings that surprise us, either pleasantly or unpleasantly. Sometimes courts are utterly predictable. There’s a little of both in the most recent chapter of the Iacangelo saga, which we’ve covered before here. Iacangelo v. Georgetown University, 2010 WL 4807082 (D.D.C Nov. 19, 2010). Plaintiffs brought suit on behalf of their daughter, who had been treated for arteriovenous malformation (AVM), an abnormal tangle of veins and arteries in her brain through which blood could not flow properly. The treating doctor used a method known as embolization, which involves using adhesives and other mechanisms to seal off the blood vessels feeding the AVM in the brain. In this case, the doctor used Histoacryl, a glue, and Lipiodol, a poppy seed-oil compound visible in X-rays. The FDA had not approved Histoacryl and Lipiodol for this treatment, either in combination or separately. Moreover, those substances could not be purchased from suppliers inside the United States. You might ask, “So what?” And you’d be pretty smart.
The treating doctor was named Watson, which accounts for the silly title of this post. In the old (1940s) Sherlock Holmes movies, Nigel Bruce played Dr. Watson as a dough-eye doofus, but in the original stories by Sir Arthur Conan Doyle, Watson was smart even if he lacked his buddy’s superhuman deductive powers. Dr. Watson was also something of a tough guy. He had been wounded in Afghanistan, and could handle a gun rather well. Perhaps most interestingly, in the first story, A Study in Scarlet, Conan Doyle wrote of Dr. Watson’s “experience of women which extends over many nations and three continents.” Hmmm. Maybe Jude Law’s recent portrayal of the good doctor wasn’t so far off the mark. And the words “good doctor” bring us back to the Iacangelo case.
The parties offered “wildly divergent accounts of what Dr. Watson told Ms. Kerris, her patients, and her husband.” 2010 WL 4807082 at *1. Since we’re at the summary judgment stage — for you non-lawyers, that means we don’t evaluate who’s telling the truth (although we have our suspicions) — we’ll go with plaintiffs’ allegations, including that Dr. Watson said that embolizations “had a 95% chance of success,” and that Dr. Watson never revealed that neither Histoacryl nor Lipiodol had been FDA approved.
Earlier in the litigation the court dismissed negligence per se claims that had been premised on alleged violations of the FDCA. The court had concluded — correctly, of course — that the FDCA established administrative requirements rather than a substantive standard of care. Moreover, there’s no private right of action under the FDCA, and a plaintiff shouldn’t manage to create one via negligence per se. That being said, the plaintiffs attempted to support their remaining causes of action with expert testimony “on what the FDCA had required of Dr. Watson in connection with his treatment of Ms. Kerris.” Id. at * 2. The plaintiffs offered three lawyers as experts who would opine that Dr. Watson violated the FDCA by not being supervised by an IRB and not getting an investigational device exemption (IDE), and that Georgetown violated the national standard of care by allowing Dr. Watson to use an unapproved product without IRB review.
The magistrate judge who presided over the management of discovery excluded those legal experts. The plaintiffs argued that the magistrate judge’s exclusion ruling went beyond management of discovery. The district court disagreed with plaintiffs on the scope of the magistrate judge’s powers. The court’s discussion of Fed. R. Civ. P. 72 and the local rules thereunder is way more interesting than you’d expect. In any event, the district judge concluded that the magistrate judge “correctly found that the opinions proffered by [plaintiff’s legal experts] contained numerous impermissible legal conclusions and would usurp the roles of both the Court and the jury.” Id. at *4.
That’s not really a surprising ruling. It seems obvious. Perhaps plaintiffs made it ultra-easy by trying to waltz three lawyers to the witness stand. Clearly, it’s the judge, not some wind-up expert witnesses, who have the responsibility for explaining the law to the jury, and the law in the DC Circuit is especially good on this point. “Each courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.” Burkhart v. WMATA, 112 F.3d 1207, 1213 (D.C. Cir. 1997). The truth is that plaintiffs try to use expert witnesses to school jurors on the law all the time. Typically, they’re a little more subtle and use regulatory experts. (We won’t name names, except one sounds like a denizen of the City of Light, and another shares a surname with a Heisman trophy winning Stanford quarterback.) But whatever the expert’s cv or title, an expert almost never has any business telling the jury that the defendant broke the law. Such “experts” really are usurping the roles of the judge and jury. We wish that exclusion of such experts was utterly predictable.
The plaintiffs’ breach of warranty claim was straightforward. The treatment was not a success even though Dr. Watson said that there was “a 95% chance of success.” The court held that favorable odds did not equal a guaranty of success. Id. at * 7. That’s simple logic and seems indisputable. Interestingly, in a prior opinion addressing a different motion, the court “suggested in passing” that a statement by Dr. Watson to the effect that embolizations would have a “95% chance of success” would constitute an enforceable warranty. To the Court’s credit, after reviewing a more complete discussion of the governing law, the Court was now “persuaded otherwise.” Id. at *7 n. 3.
The plaintiffs’ fraud claim was based on alleged omissions. According to the plaintiffs, Dr. Watson should have disclosed that the use of Histoacryl and Lipiodol was “illegal” because of the lack of FDA approval. Now we think that claim is hooey because it’s — how do we put this — wrong. Off-label use is not illegal. But the court dismisses the fraud claim on other, simpler grounds. Fraud requires scienter, and there was absolutely no evidence that Dr. Watson had any intent to deceive. Sure, the plaintiffs submitted speculation that Dr. Watson wanted to perfect his skills with the new method, hoping to get more patients and more revenue, but such speculation cannot save a claim from summary judgment. Further, even if Dr. Watson had said there was a 95% chance of success, predicting incorrectly isn’t the same thing as fraud. If it were, we’d be suing sportswriters on a weekly basis.
To our admittedly biased eyes, these rulings seem sensible. They seem right. You might even say that they are elementary.