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Now where were we? Oh, that’s right, we were at another firm and were handing out farewells. Our Long Goodbye was apparently so maudlin and overwrought that some readers thought it signaled full-on retirement or a fatal disease. It turns out that our temporary exit from blogging was prompted by nothing more dramatic than a change of firms and an impending trial. Now Bexis has traipsed off to the same firm (coincidence – or so he says) and the trial settled on the courthouse steps. As Pacino says in the one good line in Godfather III, “Just when I thought I was out, they pull me back in.” We are treating this reentry into the blogosphere as a second chance. It is an opportunity to do better. In our former stint, we ladled on a little too much fluff and low-brow silliness. Looking back, it is almost embarrassing how we seized upon any slender excuse for connecting legal developments with our pop culture obsessions. Shame on us for pretending to derive doctrinal learning from the likes of Star Wars or George Harrison or the film criticism of Pauline Kael. We hereby resolve to keep things on a higher, more serious plane.
So let’s talk about that Mad Men season 5 finale. It was called “The Phantom,” a reference to a couple of dead guys and an unrealistic career choice. The reviews of the episode have been mixed, and at least one esteemed critic showcased a delightfully euphonious word we had not heard before: “anvilicious” — as in, the themes of the finale were as subtle as an anvil dropped on the audience’s tender noggin. There is truth to that. It is not exactly subtle for the ghost of Don Draper’s brother to glide into a dentist’s office and inform a nitrous-oxidized Don that it’s not just his tooth that is rotten. Nevertheless, to our mind, the finale was a perfectly serviceable way to wrap up a transitional season, and to put an exclamation point at the end of a string of motifs of double-ness and appearance vs. reality. It is arguable where Mad Men ranks in the Big Four of recent great cable tv dramas (along with The Sopranos, The Wire, and Breaking Bad), but it is clearly the most relevant for most of us. Putting aside some of our more aggressive plaintiff lawyer friends, not many of us can identify with folks dealing in extortion and brutality. But we all play the game of trying to get others to buy what we have to sell. Not too long ago we worked with an incredibly successful trial lawyer who loved to remind us that what goes on in front of the jury is more a play than a recitation of real life. We understand what that means, but, frankly, that sort of thing makes us a little squeamish. Maybe it’s a product of some particularly admirable role model or too many Frank Capra movies, but we are viscerally attached to the image of ourselves as being scrupulously honest. Note the word “image.” There is always that gap between who we are and who we want to be.
Don Draper is literally not who he pretends to be. Who is he pretending to be? A war hero. A loving husband. And James Bond. In an earlier episode, we catch Don reading From Russia With Love. In the season 5 finale, there is a double reference to Bond. Don plops down next to Peggy [if you buy the definition of the main character as the one who undergoes the biggest change, Peggy is the main character of Mad Men] in a movie theater to watch Casino Royale, a sloppily, self-indulgent unfunny comedy that came out in early 1967 (not to be confused with the recent, very fine Daniel Craig version). Then, at the end of the episode, we get the best three minutes of the show so far, putting aside “The Wheel” and “The Suitcase.” Don walks off a soundstage, strides alone in the dark, ambles up to a bar, orders an Old Fashioned, and then a Heather Graham look-alike asks him if he is alone. His eyes narrow, he turns, and he offers that old serial-canoodler Draper smile, oozing bad intentions. The screen goes black. Season 5 was about second chances (e.g., Don’s second marriage) and dealing with inner duality. Is Don alone? Will he stay that way? Will Don backslide and bid adieu to fidelity? By the way, what do you think 1968, that awful year of assassinations, the Tet offensive, Chicago riots, and Nixon, has in store for our morally challenged Mad Men characters? (Which is to say, all of them.)
That marvelous three minute ending to season 5 begins with deep orchestral maneuvers, followed by piercing string notes. Wait a minute – is that really the song they are going to play? Yes, and it is so perfect that you have to believe that show runner Matt Weiner knew all along he would use it. He was just waiting for 1967 to arrive. The song was “You Only Live Twice,” sung by Nancy Sinatra for the Bond movie of the same name. Sinatra’s singing is a bit uncertain (nepotism is another theme in season 5 of Mad Men), but the opening lines ring clear: “You only live twice/or so it seems/ one life for yourself/and one for your dreams.” We get good Bond and bad Bond. Good Don and bad Don. And we get a whole cast of characters trying to reconcile inner ideals with outer, scurvy selves. As the credits rolled, we thought of that over-used Karl Marx quote from “The Eighteenth Brumaire of Louis Napoleon,” about how history repeats itself, “first as tragedy, then as farce.” Not too long ago, we wrote a couple of posts about sequels, and how things usually get worse, not better. “You drift through the years/and life seems tame/then one dream appears/and love is its name.” And then you screw that up. The people who most plea for second chances are most likely to squander them. It’s hardly an uplifting theme, but, as with The Sopranos, it is as if the writers want to make clear that bad people deserve bad consequences.
But good people deserve a second chance. So do good lawyers. “You Only Live Twice” was a good movie and a great song, but as a life lesson it is a bit pessimistic. (By the way, as a shout-out to one of our loyal readers, we also acknowledge that “You Only Live Twice” is inartfully phrased. Somewhere in the great fly-over resides one of the three or four best product liability lawyers in the country. He is frighteningly smart. So smart, in fact, that he already knows this parenthetical is about him. Many years ago, he wrote a little pamphlet for associates about how to write. Strike that: it was really about how not to write. It, along with DDL blogger emeritus Mark Herrmann’s Curmudgeon’s Guide, is the best primer on legal writing we have ever seen. Anyway, one of our friend’s pet peeves was the misplaced “only.” “Only” should go right in front of the word it is modifying. So it should be “You Live Only Twice.” Got it?)
Two weeks ago we wrote about Ray v. Allergan, 2012 WL 1979226 (E.D. Va. June 1, 2012), where excellent defense-lawyering earned a defendant a second chance — a new trial. The court overturned a $12 million verdict and held that the plaintiff had impermissibly argued that the Botox label should have come with a boxed warning. The judge held that such an argument was preempted. You might remember the really weird thing about the Ray case: the defense lawyers obtained the courtroom security video, which showed that during closing argument the plaintiff lawyer used hand gestures to describe a box warning. Those were not empty gestures. They were prejudicial. They misled the jury into thinking that liability could be imposed for failure to include a boxed warning. Ray I was a good opinion. Ah, if there is a Ray I, there must be a Ray II, right? (It reminds us of an Encyclopedia Brown story, where the teenaged detective deduces that a purported civil war sword is phony because its inscription says that the sword was presented to the Confederate General immediately after the victory at the First Battle of Bull Run. How would they know there would be a Second Bull Run? Plus, the South called it Manassas, not Bull Run. But we digress.)
In granting the motion for a new trial, the Ray court did not address the defendant’s Mensing argument. Instead, that would be ‘explained elsewhere.” Bexis went on to speculate what that Mensing argument was. And, as usual when it comes to conjuring up smart defense arguments, Bexis got it right. Under Mensing, drug and device manufacturers should not be on the hook for not taking steps when it is not clear what the FDA would have done in reaction to those steps. Rather, the issue should be what the manufacturer could have made happen independently. We said that “we look forward to seeing what happens next in Ray.” Mark that as a monument to our prescience. We are not sure how many of you read the comments to our posts, but they are usually worthwhile (putting aside the spambots that occasionally litter the comment field with oddly inappropriate sales pitches). This time, one of our faithful readers had the temerity to disagree with Bexis, pointing out that Mensing was about generics who could not approach the FDA to suggest label changes. By contrast, the defendant in Ray was the name brand manufacturer. That is a good point, as far as it goes. But Bexis offered a rejoinder, demonstrating that the point did not go far enough. “The point of Mensing is that the FDA might or might not do something at some indefinite future time, whereas the state requirement of an ‘adequate’ warning (or design, or whatever) is immediate. If the defendant can’t independently act immediately, then it can’t comply with both requirements and there’s impossibility preemption.”
As we said, Bexis can devise a logical argument. But Bexis cannot always predict what an illogical court might do. Now we have the Ray court’s ruling on the Mensing issue. Ray v. Allergan, Inc., 2012 WL 2120018 (E.D. Va. June 1, 2012). As for the debate between the commenter and Bexis, let’s just say that Bexis came in second place. The court ended up holding that whatever the underlying logic behind Mensing and its takes-steps vs. acting-independently analysis, Mensing applies only to generics. If you are not in Mensing-land, you are in Wyeth v. Levine-land, where preemption is but a fond dream. It’s not even a close call, according to the Ray court. We know we’re headed to a bad place when the court tells us up front how preemption is disfavored. Ray, 2012 WL 2120018 at *2. We know we are headed to a very bad place when the Ray court gratuitously calls the 2006 FDA pro-preemption preamble “remarkably arrogant.” Id. at *3 n. 1. The Ray court holds “that Mensing simply does not apply here and that it does not change the fundamental principles announced two years earlier in Wyeth, a decision that the Supreme Court actually cited with approval in its decision in Mensing.” Id. at *5. The Ray court declined “to do what the Supreme Court did not do, extend the rationale of Mensing to brand name drugs.” Id. at *7. Thus, while federal regulations control what must be in a black box warning and, therefore, “any theory based on a black box warning as a requirement of state law would be preempted,” “nothing in the regulations that govern Allergan’s duties at issue precluded using bold type or some other way of emphasizing and making prominent language respecting the information that was in its possession. Moreover, nothing in Mensing precludes Allergan, as distinct from a generic manufacturer, from sending a Dear Doctor letter.” Id.
Talk about empty gestures! A plaintiff lawyer cannot say box warning and cannot draw a box with his or her hands, but it sounds like pretty much everything else is fair game. We are not quite calling Ray II a farce. In fact, lots of other courts might come out the same way. Pity, that. Marx was always talking about the “contradictions” he spotted everywhere, and how they would inevitably produce some new synthesis. There is, at a minimum, some tension between Levine and Mensing, and it will be interesting to see how it will play out, either in the legislative or judicial arena. Granted, it would take a gutsy court to follow the logic of Mensing along the lines Bexis suggested. But we cannot help mourn the missed opportunity.
Anyway, that is why Ray II made us think of the Mad Men season 5 finale. We are looking forward to season 6 even more than Bexis looked forward to Ray II. We trust that we will not be similarly disappointed.
It is good to be back.