This is a post about one of our least favorite subjects – punitive damages. We had to conduct some research recently that we thought we’d share with you. It has to do with the lowest constitutional limit on punitive damages ratios that the Supreme Court has mentioned. That occurred in State Farm Mutual Automobile Insurance
Cross-jurisdictional class action tolling. Even though Bexis invented the phrase, we hate it. We’ve lambasted that concept many times on this blog, see here. Basically: (1) the law should not reward the filing of meritless class actions by tolling the statute of limitations; (2) lawyers and courts in one jurisdiction should not be allowed to manipulate the statutes of limitations of other jurisdictions; and (3) each state is a sovereign, and should be able to set its own tolling (and other) rules without outside interference. In fact, we’re so anti-cross-jurisdictional class action tolling that we maintain a scorecard concerning this rather arcane legal topic.
Another peeve that we’ve occasionally petted is the tendency of some courts – particularly in the Second Circuit – to assume that they know more about the law of other states than do those other states’ courts.
Those two threads come together in Casey v. Merck & Co., ___ F.3d ___, 2011 WL 3375104 (2d Cir. Aug. 5, 2011), where for once the Second Circuit decided not to play the “New Yorkers know best” card and instead certified the cross-jurisdictional class action tolling question to the Virginia Supreme Court.
Once again, the issue in dispute goes back to our Bone Screw days – when we first learned to hate cross-jurisdictional class action tolling. The Bone Screw MDL plaintiffs filed an unsuccessful nation-wide class action (which back then was a lot less futile than personal injury class actions have since become). Despite losing class certification, tardy Bone Screw plaintiffs around the country still claimed that their states’ statutes of limitations should be considered tolled by the unsuccessful MDL class action.
They lost.Continue Reading Cross-Jurisdictional Tolling Certified
We previously discussed the Montana Supreme Court case of Riley v. American Honda Motor Co., 856 P.2d 196 (Mont. 1993) and touted it as one of the best rejections of the heeding presumption we’ve seen – rejecting all of the most often advanced arguments in favor of the heeding presumption. So we were a bit surprised when we learned about that same court’s decision in Patch v. Hillerich & Bradsby Co., No. 2011 MT 175, slip op. (Mont. July 21, 2011) (unpublished) – applying the heeding presumption.
While not a drug or medical device case, Patch is definitely a step backward by the Montana Supreme Court and one that may well have implications for our clients. Patch involves the tragic death of an 18 year-old boy who, while pitching a baseball game, was struck in the head by a ball hit using an aluminum bat manufactured by the defendant. Patch, slip op. at 2. A jury returned a verdict for the plaintiff finding that the defendant failed to adequately warn about the enhanced risks associated with its bat which allegedly increased the velocity speed of a batted ball. Id. at 3.
On appeal, the defendant sought review, among other things, of the lower’s court’s denial of defendant’s motion for judgment as a matter of law on the failure to warn claim. Id. at 2 (other aspects of the appeal raised issues related to decedent’s status as a bystander, the “workability” of providing a warning, and assumption of the risk, see id. at 5-8, 12-13). The main issue – causation. It is here that the Montana Supreme Court seems to do an about face.
The question in Patch was whether the trial court’s adoption of the heeding presumption violated the holding of Riley. Id. at 9. Clearly, it does. In Riley, the court specifically rejected the argument that the heeding presumption – i.e. shifting the burden of causation to the defendant – is necessitated by the policy underlying strict products liability. Riley, 856 P.2d at 200 (“[w]e are unwilling to shift the respective parties’ burdens in such a fashion. . . . A defendant certainly is in no better position to rebut a presumption which totally excuses a plaintiff from meeting the causation element than a plaintiff is in establishing the causation element as part of the prima facie case.”).Continue Reading Montana Takes a Flexible Approach to the Heeding Presumption
Last Wednesday an article appeared on the front page of The Wall Street Journal, “Mistakes in Scientific Studies Surge,” that got our attention. Retractions of articles from scientific journals have been climbing at a staggering rate. While the number of articles has increased by 44% since 2001, the number of retractions has
We talk about a lot of law on this blog, but sometimes, we have to admit, the law doesn’t matter, and cases are decided simply on the basis of good lawyering and bad witnesses. Exactly this happened in Zundel v. Johnson & Johnson, No. A-3984-08T1, slip op. (N.J. Super App. Div. Aug. 5, 2011) (unpublished). In Zundel, the jury – and then the appellate court – found for the defense because, essentially, the other side’s witnesses were exposed as liars.
Zundel involved bad injuries, no doubt about it. Stevens-Johnson syndrome – especially the worst kind, toxic epidural necrosis – basically makes your skin fall off, as if burnt. Zundel, slip op. at 4-5. The other side has created a cottage industry taking what are essentially rare idiosyncratic reactions (id. at 5 – TEN incidence is at most one in a million) to almost any drug (and maybe other foreign substances as well) and turning them into failure to warn cases. In order to avoid the learned intermediary rule, among other reasons, the other side prefers to target over-the-counter products in SJS/TEN cases.
That has its advantages, but there are disadvantages also. Disinterested doctors are more likely to be credible witnesses than plaintiffs and their family members, who testify with dollar signs in their eyes. That’s what happened in Zundel.
Once the unfortunate minor plaintiff suffered (and we on the defense side don’t use the word “suffered” lightly) from SJS/TEN, the family, with legal assistance, went looking for some medication to target. Motrin was the target of choice.
One slight little problem cropped up as the case proceeded, however.
It turned out that the plaintiffs’ aim was bad – really bad. How bad? Well, the minor plaintiff didn’t start taking Motrin until after already exhibiting the first symptoms of SJS/TEN:
The record shows that [minor plaintiff] was afflicted with TEN on January 5, 1998, when she was first examined by [treating physician] and before she was given Children’s Motrin by her mother.
Slip op. at 12 (emphasis added).Continue Reading Sometimes, The Law Doesn’t Matter
We’ve been around the preemption block a few times – we know what happens when the mainstay claim in prescription medical product liability litigation, that being inadequate warnings, gets preempted.
We first saw it in DTP vaccine litigation. We made a little headway with preemption and plaintiffs responded with “design’ claims based on non-FDA-approved formulations. It took the Vaccine Act to bury those.
We saw it again in Bone Screw litigation, pre-Lohr. Plaintiffs responded with fraud on the FDA claims. It took Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), to do those in.
We saw it yet again in prescription drug litigation, pre-Levine. Plaintiffs responded with all manner of things – design defect claims with no alternative design at all, failure to test, illegal promotion, you name it. Some of these we’re still fighting, but with the preemption threat to warning claims removed, most of these have receded into the background.
We saw – and see – it a fourth time in PMA medical devices, especially after Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). The plaintiff’s alternative has been disguised private FDCA enforcement actions presented as “parallel violation” claims.
And we expect to see it again now that PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), has knocked out warning claims in generic drug cases. So what’s the non-traditional (a/k/a weird) claim of choice there going to be? The jury’s still out on that, but judging from the Mensing reargument petition, which we discussed here, one oddball claim under serious consideration by the other side is the notion that a defendant can have a common-law obligation simply not to sell its product at all.
In other words, the flavor du jour in generic cases could be failure to recall, resurrected from what has to date been extensive and well-deserved judicial repudiation.Continue Reading We Don’t Recall
Most of the opinion in Riley v. Medtronics [sic], Inc., C.A. No. 2:10-01071, slip op. (W.D. Pa. Aug. 8, 2011), is a fact-specific statute of limitations discussion – oddly occurring in the context of a motion to dismiss – about a less-than-diligent plaintiff who did next to nothing until the statute had almost expired
We were saddened last week by the passing of Charles Aaron Smith. He was better known as Bubba Smith, and we were fans of him as both a football player and as an actor. He was an intimidating force at defensive end. He played on some great Michigan State teams, where the fans would cheer, “Kill, Bubba, kill.” (By contrast, Princetonians chanted, “Kill, Bexis, kill.”) Bubba Smith was the first player selected in the 1967 NFL draft and, in a sport full of tough guys, he stood out as being especially tough. After his football career ended, Bubba Smith went to Hollywood and played guys who were as sweet and loveable as they were strong and unmovable. (He was also a spokesman for a Baltimore plaintiff’s firm.) In Miller Lite commercials and Police Academy movies, Bubba Smith seemed like a nice guy who would apply force only with the greatest reluctance.
As far as we were concerned, the latter image was closer to the person we knew. How did we know him? Only a little. About 15 years ago we were flying cross country and were lucky enough to be seated next to Mr. Smith. There was the usual issue when placed in close proximity to a celebrity — try to make a connection or leave them alone. We resolved to do the latter. So we mostly kept quiet, bouncing the not-yet-two-years-old drug and device law daughter on our knees. Like a lot of infants, she called her bottle her “bubba.” When she got hungry, she started babbling, “Bubba, bubba, bubba.” Amazingly, this time she stared straight at Bubba Smith as she did so. He broke up laughing, and for the rest of the flight he told stories. Mostly they were funny stories about football and show business.
There was one story that made Bubba Smith’s smile disappear: he was convinced that Super Bowl III, where the Joe Namath-led Jets shocked the world by upsetting Bubba Smith’s Baltimore Colts, was fixed. He named the specific people he thought were in on it. He supplied plausible reasons. There’s that famous shot of Jimmy Orr wide open in the end zone, desperately waving for the ball to be thrown his way. There are the reports of a lot of big-money, last-minute bets on the Jets. There’s an argument that the Jets’ upset of the powerhouse Colts, as well as the Chiefs’ upset of the Vikings the following year, were necessary to make the AFL look respectable and make its merger with the NFL successful.
Maybe we’re naive, but we were shocked by Bubba’s allegation. We were also skeptical. It’s hard to believe that such a huge conspiracy can survive in this nation of blabbermouths. But we felt privileged to be privy to such a an interesting theory from such an insider. Turns out we weren’t so privileged. In reading the obituaries, we learned that Bubba Smith didn’t confine his theory to random lawyers he met during fly-overs. He told the same story to journalists. Often. Like we said, Bubba had lots of reasons, though little actual evidence. Clearly, that 1969 Super Bowl loss still stung.
Losses have a way of doing that. Maybe lawyers are less capable of dealing with losses than most people. As we mentioned last week, when lawyers tell war stories, they invariably end in victory. That’s a fiction and that’s a pity. One can certainly learn way more from losses than victories. Doctors have mortality and morbidity meetings, where they discuss why things went wrong with patients. Then they try to make sure those things don’t happen again. We think that lawyers should do more of that: acknowledge losses, fess up to mistakes, and resolve to do better. Instead, we are more likely to hear lawyers either pretend losses didn’t happen, or pin the losses on crazy judges, corrupt opponents, or imbecilic jurors. That should be a violation. That should draw a penalty flag. As Bill Parcells said (and, honestly, this is about the deepest thing we’ve heard anybody say in the last 10 years), “You are what your record says you are.”
Lately, we’ve posted some accounts of cases that didn’t turn out so well for those of us huddled on the right side of the “v.” First of all, let’s face it that sometimes the defendant is supposed to lose. Facts are stubborn things. Anyway, it can be tricky to identify what actually constitutes a loss. We’ve seen plaintiff lawyers walk away with ‘wins’ that probably didn’t cover their experts’ hotel bills. But let’s also face the fact that lawyers sometimes lose by overcomplicating things, by burying one or two good arguments in a mountain of credibility-killing weak arguments. If the judge or jury is confused, the lawyer could have done better.Continue Reading You are Your Record