We just read Scharff v. Wyeth, 2011 U.S. Dist. Lexis 85132 (M.D. Ala. Aug. 2, 2011). Substantively, it’s all about the application of the statute of limitations, and we don’t usually blog about statute of limitations issues (except class action tolling, which Scharff did not address) due to their fact-bound and state-specific nature.
In
The other day we saw the Nevada Supreme Court’s decision in Williams v. Eight Judicial District Court, ___ P.3d ___, 2011 WL 3206963 (Nev. July 28, 2011). One of the two “novel” questions the court decided in Williams is “whether defense expert testimony offering alternative causation theories must meet the ‘reasonable degree of medical probability’ standard” as plaintiff-side experts. Id. at *1. The Nevada court unanimously held that, because defendants don’t have the burden of proof, defense experts’ opinions don’t have to meet that standard, because that would effectively be shifting the burden of proof to the defendant:
[W]hen a defense expert’s testimony is used to contradict a plaintiff’s causation theory by comparing that theory to other plausible causes, each additional cause does not need to be stated to a greater-than-50-percent probability. To hold otherwise would severely hinder a defendant’s ability to undermine the causation element of the plaintiff’s case and could result in an unfair shifting of the burden of proof to the defendant.
2011 WL 3206963, at *7. The court relied primarily on Wilder v. Eberhart, 977 F.2d 673 (1st Cir. 1992), which reached a similar result under New Hampshire law:
Were we to accept plaintiff’s argument that once a plaintiff puts on a prima facie case, a defendant cannot rebut it without proving another cause, the resulting inequities would abound. For example if ninety-nine out of one hundred medical experts agreed that there were four equally possible causes of a certain injury, A, B, C and D, and plaintiff produces the one expert who conclusively states that A was the certain cause of his injury, defendant would be precluded from presenting the testimony of any of the other ninety-nine experts, unless they would testify conclusively that B, C, or D was the cause of injury. . . . We think that such a result does not reflect the state of the law in New Hampshire, and furthermore would be manifestly unjust and unduly burdensome on defendants.
Id. at 676-77.Continue Reading Reasonable Certainty and Defense Experts
The other day, the Institute of Medicine came out with its long-awaited – and it seems to us, rather short on specifics – report, “Medical Devices and the Public’s Health: The FDA 510(k) Clearance Process at 35 Years,” on the FDA’s §510k “substantial equivalence” clearance process for (some/most) medical devices. Here’s a link to the
We’ve complained before about the horrendous – and more than that, almost entirely one-sided – expense of ediscovery in prescription medical product liability litigation. It just seems to be getting worse. It’s almost always a free shot for the other side, since plaintiffs simply don’t have electronic databases. The only way to make the other
If you’re looking for legal analysis, tune in tomorrow. What follows is a mere memoir.
It’s the same old story. Literally. Find a litigator and you’ll find a war story. Lawyers are quick to tell tales about their battles of yore, especially when the stories culminate in victory. Most of these war stories end up being self-aggrandizing — ham-handed ways of informing clients, colleagues, or opponents that the lawyer is successful and should be respected and/or feared.
Telling stories is part and parcel of a litigator’s job. Persuading juries and judges requires us to go beyond logic. We don’t just tell stories; we retell stories. The listener has heard these stories before and is predisposed to believe them. In college we took classes in folklore and mythology (affectionately called “Fairy Tales for Football Players”) and ancient epics (“Heroes for Zeroes”) where we learned that there are patterns of stories that recur throughout the history of civilization. For example, The Iliad, Gilgamesh, and Beowulf follow the pattern of absence, devastation, substitute death, return, and then (temporary) victory. It has something to do with the agricultural cycle, when the barrenness of Winter terrorized our ancestors, and they thought some sort of sacrifice was needed to ensure the return of Spring and crops. You’ve no doubt bumped into other story patterns. There are stories of journey, where someone goes on a road that is both literal and a metaphor for self-discovery, such as The Odyssey, Huckleberry Finn, and On the Road. There is also the journey through life, with growth, initiation, and maturity. Our high school English teacher taught us that this genre was called bildungsroman by the literati. (Think of David Copperfield, A Separate Peace, and The Kite Runner.)
Successful modern stories, such as the Harry Potter yarns, exploit these patterns. For those of us who started listening to music on vinyl rather than iTunes, we think of the “Star Wars” movies and how they have been explicitly connected to the old patterns. There have been comparisons done between Potter and “Star Wars”, and not just in terms of box office revenues. Potter might win out because all the movies were adequate, while even the most hard core “Star Wars” nerd has trouble stomaching the prequel trilogy. Our friends at the Abnormal Use blog definitively addressed whether the prequel trilogy constitutes a defective product here, complete with legal citations. The sheer awfulness of “The Phantom Menace” makes us wonder whether a menace resides in one person having too much creative control. Group-think offers its own dangers, but there’s something to be said — in both movies and trials — in gathering collective thoughts and resolving tensions.
By every available test, “Star Wars” simply worked. It thrilled us, it stayed with us, and it made scads of money. William Goldman is famous for saying that in Hollywood “nobody knows anything,” but everybody had an explanation for why “Star Wars” was such a monstrous hit. George Lucas issued an explanation with intellectual cache when he acknowledged a debt to the anthropologist Joseph Campbell, whose Hero of a Thousand Faces recounts the patterns that exist in ancient epics as well as late 20th Century space operas. There’s usually a guide (Obi Wan Kenobi), a shape-shifter of dubious loyalty (Han Solo), a quest (duh), and a Wookie. (Okay, maybe not always a Wookie, but at least some sidekick.)
There was a terrific article in last week’s Wall Street Journal on “Hollywood Frontiers: Outer Space and the Wild West.” It was provoked by the new “Cowboys and Aliens” movie. The article describes how Lucas, in imagining “Star Wars,” “wanted to invent a new mythology, a thrilling story with noble lessons, the kind that Westerns once served up but weren’t around to do anymore.” The WSJ article then points out parallels between “Star Wars” and the John Ford western, “The Searchers.” We had forgotten that in “The Empire Strikes Back” the bounty hunter, Boba Fett, wears spurs.
Whatever you might think of the merits of the story-pattern thesis, or the catastrophe called Jar Jar Binks, for a lot of us AARP members “Star Wars” remains a big deal. The first (yeah, yeah, it’s called episode IV, but it remains the first in our hearts) “Star Wars” movie came out at the beginning of the Summer of 1977, that last semi-innocent interval before we headed off to college. In that sense, it represents for us a transitional moment. That same transition is at the heart of “American Graffiti,” Lucas’s earlier — and, we’d argue, even better — movie. “American Graffiti” is a myth set in one night about people growing up. (By contrast, “Shampoo” (1975) is a one night myth about somebody who does not want to grow up. We miss the movie-myth-making ambitions of the 1970s. If you haven’t seen the documentary Easy Riders, Raging Bulls, then go out and get it. Drop those interrogatories and epidemiology articles and see that movie.)
George Lucas has been reasonably clear about the origins of “American Graffiti” and how it depicts different aspects of his high school personality. As a teenager, he wanted to race cars like the Milner character. But Lucas got into a terrible car accident and decided to go in a different direction. He eventually went to film school. He did pretty well. He made some good movies. And he made lots and lots of money. He snookered the movie studio by holding onto the merchandising rights to “Star Wars.” Remember those R2D2 and Lando Calrissian “action figures” you played with in second grade? Some of the profits went to Lucas’s Industrial Light and Magic. It’s a legendary deal, sort of like Microsoft holding onto the rights to its software when it entered into that early license with IBM.
Some people think “Star Wars” is what put an end to that hyper-creative 70s era of film-making. Computerized graphics and explosions supplanted personal artistry. Given its enormous cultural and economic impact, one would think that the origins of “Star Wars” would be well-documented. One would be wrong. To our cynical ears, the Joseph Campbell attribution sounds like post hoc pomposity. We doubt Lucas was thinking of Patroklos when he had Darth Vader slay Obi Wan Kenobi. At the same time, we doubt Lucas was a space trooper or Ewok when he was in high school. Where did the “Star Wars” idea come from?
That gets us to our story-within-a-story. About ten years ago we had a product liability death case that moved toward trial at the speed of light. The decedent’s family was fired up and there wasn’t going to be any settlement. We were in the process of wrapping up discovery when we became fixated on deposing the estranged 75 year old sister of the decedent. The specifics elude us now, but we thought she might offer some lifestyle testimony that could support an alternate causation or assumption of the risk defense. One problem: the sister had no desire to participate in our jolly little lawsuit. We subpoenaed her for a deposition. Standing in the foyer of her North Philly row house, she growled at the process server that there was no way she would show up at the deposition. Cheap talk. We’ll see about that.Continue Reading Another (Star) War(s) Story