Every now and then, we think it’s a good idea to step back from the press of everyday events, current litigation, and where our next engagement is coming from and think a bit about the longer term. Today’s one of those days. Not too long ago we were asked privately to opine on what we
We’re sticking to a plain-vanilla report on a recent Virginia case because of our involvement in the Hormone Therapy litigation, but it is a good decision worth noting. In Torkie-Tork v. Wyeth, 2010 U.S. Dist. LEXIS 133179 (E.D. Va. Dec. 15, 2010), the plaintiff nominally asserted inadequate warning and design defect claims. At the
If you surveyed lawyers of all stripes involved in tort litigation, you would probably find that the overwhelming majority hate insurance companies. Plaintiffs’ lawyers, of course, hate them because insurance companies won’t give them all the money they want. Defense lawyers who seek coverage for claims against their clients hate it when insurance companies deny
We hate to start the New Year by reporting on a dismal case but, as we said on Friday, the Montana Supreme Court’s decision in Stevens v. Novartis Pharmaceuticals Corp., 2010 MT 282 (Montana December 30, 2010), adds to this Winter of discontent. Once a Supreme Court comes out with a decision, you’re stuck with it. Smart lawyers try to make the best of such decisions, even when they are mostly bad news. Bexis is a smart lawyer, so that’s what he did on Friday, emphasizing the Montana Supreme Court’s reaffirmation of the learned intermediary rule.
And now we must confront the ugly bits in the opinion.
Before we do that, let’s confess to a smidgen of exasperation. For a couple of weeks in a row, the Monday column has had to report bad opinions. Last week it was the horrific Bausch case from the Seventh Circuit. We’re starting to feel like Stuart Scott from ESPN’s Sportscenter, when he was always saddled with providing the ‘highlights’ for the crappiest football games of the week. This was a while ago — back then, the worst teams were Tampa Bay, Green Bay, and Pittsburgh. (An LA Times sports columnist called the Steelers “Pitt Bay” to keep the Bay theme going when listing the Bottom 5 NFL teams). Poor Stuart Scott dutifully struggled to say something interesting about the latest interceptions heaved by the likes of Bubby Brister or Vinny Testaverde. Maybe that grim parade is what prompted Scott to resort to endless catch-phrases: “cool as the other side of the pillow,” “all that and a bag of chips,” and, of course, “Boo-yah.”
We wish we could dismiss the Stevens case with a few catch-phrases, but it won’t be so easy. The plaintiff claimed that Novartis had failed to warn that Zometa could cause osteonecrosis of the jaw (ONJ). The plaintiff had begun taking Zometa in 2002 for lymphoma. In early 2005, the plaintiff was diagnosed with ONJ and stopped taking Zometa. ONJ is a progressive disease, so the plaintiff’s problems with it continued. More happily, the plaintiff’s cancer “was in remission, as it has been ever since.” Slip op. at 6.Continue Reading A Big Boo (Not “Boo-Yah”) for the Montana Supreme Court