Photo of Stephen McConnell

Let’s get this out straightaway: it is gruesomely hard to come up with a Super Bowl theme for a post on drug and device litigation. It’s even harder for anyone in Philadelphia to come up with anything nice to say about New York or Boston. Philadelphia used to be the second-biggest English-speaking city in the world. But the Erie Canal and other factors propelled NYC past us, and we’re still smarting over the indignity. We probably harbor even harsher feelings for Beantown. Applying any objective measure, Philly trumps Boston (more history, better climate, closer to, um, New York). Nevertheless, denizens of “The Hub” carry around an unbearably smug Brahmin attitude while we cheesesteak-eaters are all-too-quick to poor-mouth our fair city. Let’s remember that Benjamin Franklin was born in Boston, but fled Red Sox Nation for greener pastures – Philly – where he became our most entertaining and randy Founding Father. Let’s also remember that the Patriots (the footballers, not the heroes of 1776) racked up their greatest victories while cheating – ever hear of Cameragate?

Yesterday’s New York-New England Super Bowl presented your average Philadelphian with a bitter choice. Manhattan chowder or New England? Bah – snapper soup tastes better than either. The Ramones or Aerosmith? Those guys are all dead or look like it. Today, The Roots rule. Melville or Emerson? Turgid transcendentalism is a literary snooze-fest, and why does it take 600 pages to get from “Call me Fishmeal” to the “devious-cruising Rachel” who “found another orphan”? (Sounds like a description of an ordinary Saturday night in an Alphabet City club, doesn’t it?) Give us the legal fiction of former Dechert-ite Lisa Scottoline anytime.

Anyway, we spent too much time yesterday straining to come up with a Super Bowl angle for today’s post. Why not just pop open a Yuengling, forget that there ever was a disappointment called the Iggles, and enjoy the unofficial National Holiday? But we’re legal geeks, so we cannot help but compare Boston and New York in legal terms. Both have had some Pro Bowl jurists. Oliver Wendell Holmes was on the Massachusetts bench, and New York had Cardozo. But the glory that was Boston and the grandeur that was New York are no more. Now Boston is home to frivolous qui tam cases, and we tremble at the prospect of another social engineering magnum opus from E.D.N.Y.

So we’re setting up a new competition between New York and New England. There are a couple of cases where lower courts fumbled some pretty basic and important DDL concepts, and now it’s up to the First and Second Circuits to go under the hood and, after further review, reverse the calls on the field. To switch to another sport for a moment, we feel like Ted Knight in Caddyshack, grimacing and sputtering, “Well – we’re waiting!”

In New York there was the Caronia case, which we blogged about here and some other places. The constitutionality of the FDA’s prohibition against truthful off-label promotion is at issue. Since the Second Circuit favorably decided the Sorrell first amendment decision, later affirmed by the U.S. Supreme Court, we were optimistic that Caronia would be reversed. We are still optimistic, but are also increasingly impatient.

In New England there was the Bartlett case, which we blogged about here and several other places. Bartlett produced a couple of decent rulings, and then it produced some monstrous ones, followed by a $21 million verdict. It made our bottom ten list in 2010 mostly because the court permitted a design defect claim against an FDA-approved prescription drug, even where the plaintiff does not show an alternative design. The court also allowed failure-to-warn evidence that had no proper place in the case. The court apparently regretted the plaintiff counsel’s grotesquely unfair conduct, but did not do anything about it. In other words, the plaintiff’s counsel got away with it.

Football is fine, but it isn’t ultimately how we judge a city. We’re more likely to don a big foam finger or slip on a beer-tube helmet to honor whichever appellate court is first to tackle and reverse one of these rotten decisions.

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While we are on the subject of keeping score, we thought we’d step back and take a look at what has happened in Aredia/Zometa trials. We’ve written about motion practice in Aredia/Zometa cases here, among other places. Last Tuesday, Joe Hollingsworth reported on a defense verdict in the Kyle case that was returned in just over two hours after a three week long federal Zometa trial in the Western District of Kentucky. That was pretty good. Then the next day, in Brodie v. Novartis Pharms. Corp., the jury found in favor of Novartis following a one and a half week trial in the Eastern District of Missouri. In Brodie, plaintiff Sharon Brodie alleged that her deceased husband, John Brodie (not the 49er quarterback), developed osteonecrosis of the jaw (“ONJ”) as a result of his use of Novartis’s cancer drug Zometa. The prescribing oncologist testified that he had been aware of the risk of ONJ as a result of a “Dear Doctor “letter. That was the third federal defense verdict in a row for Novartis and the second defense verdict in just two days in litigation arising out of the consolidated federal MDL pending in the Middle District of Tennessee, In re Aredia and Zometa Prods. Liab. Litig. (The fourth case is on appeal in the Fourth Circuit.) And in the only case arising from the New Jersey state court consolidated Aredia/Zometa litigation to be tried, Bessemer v. Novartis Pharms. Corp., the jury also found for Novartis. A number of Zometa trials are set for the remainder of 2012, including a trial arising out of the New Jersey consolidated litigation that’s scheduled to begin in March. We are cheering for Joe to keep running up the score.