We’ve posted on the Aredia/Zometa litigation a couple of times – here and here, for example. We can post on these cases because we have no involvement. It’s as if our noses are pressed up against the glass. Some of what we see we like. Some, not so much. The MDL court in the Middle District of Tennessee recently issued decisions in four cases applying the laws of four different states:
– In re Aredia & Zometa Products Liability Litigation, 2010 U.S. Dist. Lexis 129236 (M.D. Tenn. Dec. 7, 2010) — applying Georgia law
– In re Aredia & Zometa Products Liability Litigation, 2010 U.S. Dist. Lexis 129276 (M.D. Tenn. Dec. 7, 2010) — applying Arkansas law
– In re Aredia & Zometa Products Liability Litigation, 2010 U.S. Dist. Lexis 129379 (M.D. Tenn. Dec. 7, 2010) — applying North Carolina law
– In re Aredia & Zometa Products Liability Litigation, 2010 U.S. Dist. Lexis 129382 (M.D. Tenn. Dec. 7, 2010) — applying Tennessee law
No single decision offers that much meat, but taken together there are a few interesting tidbits. The opinions are short. Indeed, the list of counsel is so gruesomely long as almost to match the court’s substantive discussion in word counts. The list of counsel reminds us of Homer’s catalogues in the Iliad and Odyssey, where we get a recitation of, for example, all of the Greek tribes who shipped to Troy. It’s simultaneously dazzling and mind-numbing. And it’s nice to see so many of our friends on both sides of the cases.
First, the requisite Monday digression, no doubt prompted by the dissipations of the weekend. Four is a funny number. It’s usually edged out by three when it comes to analytical constructs. Caesar divided Gaul into three, not four, parts. Our foreign policy professor, Stanley Hoffman, always had three reasons for everything. There are many significant trilogies (LOTR, The Deptford Trilogy by Robertson Davies, and The Godfather — even though most of us would wish away part III), but great four-parters don’t spring to mind (Wagner’s Ring Cycle?). Several of the world’s cultures talk about the four elements (earth, wind, fire, and water), but Maurice White and his bandmates used only three to name themselves. The Drug-and-Medical-Device Daughter informs us that 4 is considered an unlucky number in China, Japan, and Korea. Its pronunciation is similar to that for the word “death.” There are hotels in Hong Kong that omit not only a 4th floor, but all the floors with 4 as part of the number (4, 14, 24, 34, and all the 40’s.). Consequently, buildings that purport to have 50 floors might have 35. Like Brett Favre this year (jersey number 4), they come up short. (We’re talking about interceptions in crucial situations.) The DMDD also maintains that any rock band with four letters in its name will produce wretched music. Okay, we agree about Bush, Devo, Fuel, KISS, and TOTO, but AC/DC?! (There is massive disagreement here in Dechert-ville over ABBA, Rush, and Styx.) Four isn’t always so bad. After all, there’s a Final Four. Last week we wrote about Sherlock Holmes, and one of the best stories is The Sign of Four. And Aristotle said there are four types of causes: efficient, matter, end, and form.
Sadly, the issue of causation is not handled particularly well in any of the four Aredia/Zometa opinions. Both in terms of medical causation and warning causation, the court’s analysis comes across as almost perfunctory. A plaintiff’s expert utters a general conclusion that the medicine caused the osteonecrosis of the plaintiff’s jaw, and we’re off to the races. One expert rather pompously tendered his “considered opinion” that there was an “unquestionable diagnosis of Stage II bisphosphonate induced jaw necrosis” — as if emphatic adjectives were a viable substitute for data and methodology. But we don’t know what, if anything, happened in terms of Daubert challenges, so we’ll quit our grousing. The warning causation, or learned intermediary, rulings are worse. For example, in the Georgia case, the doctor testified that “even knowing what she knows now,” she would have recommended that the plaintiff embark on the therapy in question. Ballgame, right? Nope. Now the doctor issues a handout about risks, and the court concludes that this “different course of conduct” creates a fact issue as to whether things might have turned out differently. 2010 U.S. Dist. LEXIS 129236, at * 12-14. But the opinion does not identify any evidence on the ultimate issue as to whether the patient would not have taken the medicine. We are not impressed.
But there are a couple of goodies in these opinions. In the Georgia, Arkansas, and North Carolina cases, the court considered and rejected the plaintiffs’ negligence per se claims. There is no private right of action under the Food Drug and Cosmetic Act (FDCA): “The Supreme Court has stated that the FDCA leaves no doubt that it is the federal government rather than private litigants who are authorized to file suit for noncompliance with the Act.” 2010 U.S. Dist. LEXIS 129236 at *14 (citing Buckman). Plaintiffs cannot create a private right of action via a back-door negligence per se claim. This reasoning is well-established stuff, but we’re always glad to see it followed. In the North Carolina case, the court adds this slightly disturbing sentence after dismissing any separate negligence per se cause of action: “To the extent Plaintiff wishes to argue that the negligence per se doctrine creates some sort of standard by which to judge Defendant’s behavior, the Court need not reach that issue and Defendant’s Motion is moot.” 2010 U.S. Dist. LEXIS 129379 at * 13. Talk about dumping something nasty into the punchbowl. But we don’t know what this gratuitous sentence means and maybe the judge doesn’t either, so we won’t let it ruin our holiday mirth.
Let’s end on a jolly note. The court disposed of the Tennessee action on statute of limitations grounds. In Tennessee, product liability actions must be brought within one year from when the plaintiff knew or should have known that an injury has been sustained as a result of tortious conduct by the defendant. The plaintiff’s treater told the plaintiff no later than August 2, 2004 that bisphosphonates caused the jaw necrosis. The plaintiff filed her lawsuit on September 15, 2005. more than one year later. (In Travels with Herodotus, the late, great, Polish journalist Ryszard Kapuscinski renders an account of his reporting adventures around the world, all read against the clash of civilizations theme set forth by Herodotus, the father of history. While in Ethiopia, Kapuscinski is accompanied by a driver who can communicate only two phrases with him: “Problem” and “No problem.” Somehow it works. Is the water potable? “No problem.” Will the military patrol demand a graft payment? “Problem.” Anyway, here’s what the September 2005 date meant for the plaintiff: “Problem.”)
The plaintiff argued that his claims were not barred, “because a class action complaint against Novartis, filed by a different plaintiff in the Eastern District of Tennessee in December 2004, tolled the statute of limitations for filing this action.” 2010 U.S. Dist. LEXIS 129382 at * 11. A class had never been certified in the Eastern District of Tennessee, and the case was dismissed on October 24, 2005. So once again, friends, we are faced with the issue of cross-jurisdictional class action tolling — see our scorecard on that subject here. A federal diversity court applies state law in determining tolling of the statute of limitations, and the Tennessee Supreme Court declined to embrace cross-jurisdictional tolling. See Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805, 807-08 (Tenn. 2000) (“Tennessee simply has no interest, except perhaps out of comity, in furthering the efficiency and economy of the class action procedures of another jurisdiction, whether those of the federal courts or those of another state.”). Absent cross-jurisdictional tolling, the plaintiff’s action is barred and the court did not need to address the defendant’s other arguments.
Thus, the Tennessee case opinion turns out to be the shortest and also turns out to be our favorite. As we hear so often this time of the year, good things come in small packages.