Thanks and congratulations to Christy Jones and Anita Modak-Truran of Butler Snow for letting us know about – and more importantly winning – today’s decision in Smith v. Johnson & Johnson, No. 11-60624, slip op. (5th Cir. Aug. 2, 2012), affirming summary judgment in a vaginal mesh case.
Smith has two aspects, procedural and substantive. Since the opinion deals puts procedure first, so will we. Basically plaintiff tried to litigate on the cheap with respect to expert witnesses, and it backfired badly.
There are two types of causation in a warning case. There’s medical causation, meaning that the product must cause the injury. Then there’s warning causation, sometimes also going under the rubric of “legal” or “proximate” cause, meaning that the claimed defect in the warning must have affected the recipient’s (here, the physician under the learned intermediary rule) conduct in some way that caused injury.
In Smith, only the latter – warning causation – was seriously in dispute. But plaintiff, as the deadline for designating experts passed, designated only experts who addressed medical causation. Smith, slip op. at 3. Aggravating plaintiff’s failure was the complete inadequacy of the designations. Id. Then, after the defendant moved for summary judgment on warning causation, and long after the expert deadline had passed, the plaintiff responded with a conclusory affidavit from another purported expert who had never been designated at all. Id.
The judge, quite understandably, threw out the untimely affidavit. Id. at 5.
On appeal the Fifth Circuit held that the judge acted well within his discretion in refusing to countenance the plaintiffs’ playing fast and loose with expert designation procedures:
[T[he documents upon which [the belatedly designated expert] relied were available prior to the original September deadline for designation of experts. . . . [E]very one of [his] opinions could be elicited from their other expert witnesses. . . . [D]efendants [were] prejudiced by the months of delay in expert designations, and a continuance would not have cured that prejudice due to the long history of delays in the case. Denying the plaintiffs’ motion to designate . . . [the] expert was not an abuse of discretion.
Slip op. at 6. That’s good – plaintiffs get away with this kind of hide-the-expert game all too often.
The substantive part of Smith was even better. It’s a familiar story, but one that doesn’t lose its cogency with retelling. Under Mississippi’s learned intermediary rule – which the court specifically held applies to both medical devices and drugs, slip op. at 7 – there simply isn’t warning causation as a matter of law where the prescribing physician already knew everything the plaintiff alleges should have been disclosed. Specifically, in this case the prescriber knew about the consequences of tearing of the mesh:
[The prescribing surgeon] testified that he was aware of the risks inherent in using [the mesh], and stated that he was personally aware of the possibility of adverse events including extrusion and erosion. [He] had performed a number of surgeries using [the] mesh, and some of those patients had reported to him with erosions and tears. [The surgeon] also testified that he read the “Contraindications” section of the [mesh] package insert, which advised that . . . mesh “in contaminated wounds should be used with the understanding that subsequent infection may require removal of the material.” [He] saw infection as a very serious potential issue and took that possibility into account in deciding whether surgery with [the] mesh was the best option for [plaintiff].
Smith, slip op. at 8-9. When the defense hits a home run like that with the prescriber’s testimony, it should be, and was in Smith, all over.