Photo of Stephen McConnell

Good news/Bad news jokes are a staple of the Great American
Joke Machine. Not surprisingly, a lot of the jokes involve doctors. For


Doctor: I have good news and bad
news for you. The good news is that these test results say you have 24 hours to
live. The bad news ….

Patient: Wait a minute! What could
possibly be worse than that?

Doctor: The bad news is that I
received these test results yesterday.


Sometimes the pattern is extended:


Doctor: I have good news and bad

Patient: (Gulp) Well, give me the
bad news first.

Doctor: You have terminal cancer.
You won’t see the end of the year.

Patient: Cancer?! Well, what’s the
good news?

Doctor: The good news is that you
also have Alzheimer’s.

Patient: Alzheimer’s?! Well, what’s
the bad news?


Or the pattern can be elegantly compressed:


Doctor: I have good news and bad

Patient: Please give me the good
news first.

Doctor: They’re going to name a
disease after you.


We’re a fan of the misdirection versions. Like this one
(cleaned up because this is, after all, a G-rated blog):


Doctor: I have some good news and
bad news. Which shall I tell you first?

Patient: Give me the bad news
first, I guess.

Doctor: You have only one week to

Patient: Oh no! What good news can
you possibly tell me now?

Doctor: Did you see that hot-looking
nurse out at the reception desk? Well, I am taking her out to dinner, and who
knows how the night will end!


Over the last couple weeks, we’ve gotten good news and bad news
out of the Aredia-Zometa litigation. Like most of the patients in those jokes,
we’ll take the bad news first.


The Bad News


Hill v. Novartis Pharmaceuticals Corp., 2012 U.S. Dist.
LEXIS 170650 (E.D. Cal. Nov. 30, 2012), is yet another case where a plaintiff claimed to
suffer osteonecrosis of the jaw after taking Zometa for treatment of cancer.
The defendant moved for summary judgment, the court denied the motion, and the
court’s reasoning is disappointing. The defendant argued that the plaintiff’s
expert testimony did not adequately rule out potential alternate causes. The
expert’s testimony does, indeed, seem fairly thin. The expert claimed to
perform a “differential diagnosis,” though it does not seem to resemble the
differential diagnosis that doctors actually do when they treat patients.
Hill, 2012 U.S. Dist. LEXIS 170650 at *9.  Rather, it was a litigation-driven ‘differential etiology.’ In any event, the
court concluded that the expert had submitted a “reasoned explanation” that
could convince a jury that Zometa more likely than not caused the injury.

The defendant also argued that the failure to warn claim
should fail because (a) the company changed the label warning almost as soon as
the key article came out (and after the plaintiff was prescribed the Zometa),
and that there was no evidence that any additional warning would have prompted
the prescriber to make a different decision. The court held that there was
evidence that the company possessed information about the causal relationship
much earlier. What that evidence is, the court does not tell us. But the court
does tell us that “Dr. Suzanne Parisian’s testimony would be sufficient for a
trier of fact to conclude [the label] was not adequate.” Hill, 2012 U.S. Dist.
LEXIS 176050 at *12-13. Now it is our jaw that is in pain, doubtless  from
gnashing of teeth.

What about warning causation? The prescriber, Dr. Thompson,
testified that he weighed the risks and that he believes today that the
benefits of Zometa outweigh the risks. Good stuff, right? Here is how the court
handles the issue: “But that is today. There is simply no indication Thompson
would have held such a belief if he had known osteonecrosis was a risk at the
time of Plaintiff’s treatment.” Id. at * 15-16 (emphasis in original). Huh? So
even with the doctor knowing the current information about risks and still prescribing the medicine, we have to assume that the
doctor might have known something more or different back at the time of treatment?
Does that make even a smidgen of sense?  Doesn’t medical knowledge grow over time?  Since when does it shrink? Moreover, doesn’t the plaintiff have the burden of proof here?
The Hill court apparently
recognizes how weak its reasoning is, because it offers another way out for the
plaintiff. The prescriber had changed its informed consent form to include
osteonecrosis. The plaintiff testified that if she had seen the new form,
instead of the old form, she would have refused to consent to the procedure.
Yep.  Sure. Right.  You betcha.  Putting our native skepticism
aside, doesn’t the court’s position render the learned intermediary doctrine
an empty gesture?   Plus, if Hill is like most cases, there
probably is lots of evidence that the plaintiff was not quite so punctilious
about risk assessment as is after-the-fact pretended in this litigation-play (which now is
revealed to be a farce or tragi-comedy).
By the way, this is not our first brush with bad law from the Hill case.  We posted here about the E.D. Cal.’s choice of California punitive damages law in that case, where the court called the increased economic exposure “nothing more than the cost of doing business.”  Gee, that’s a swell message to anybody trying to do business in the Golden State.   

The Good News


What’s not to like about Minnesota? Any place that produces
the likes of F. Scott Fitzgerald, Judy Garland, Garrison Keillor, Bob Dylan,
the Andrews Sisters, and the Coen Brothers must be pretty good. And that’s just
sticking with real people. Add in fictional characters, such as Paul Bunyan,
Betty Crocker, and Rocky & Bullwinkle, and you’re talking about a
population of true folk heroes. Our favorite United States Senator, Amy
Klobuchar, is the senior Senator from The Land of 10,000 Lakes. She may well be
the smartest and nicest member of the World’s Greatest Deliberative Body, and
if she is not the funniest, it is only because the junior Senator from
Minnesota is Al Franken. (Maybe we should mention that Klobuchar was in our law
school class.)
People make fun of the Minnesota Vikings for their prolonged
inability to win a Super Bowl, but the team’s all-time greatest defensive
player, Alan Page, is not only a member of the National Football League Hall of Fame, but is also a
Justice on the Minnesota Supreme Court. Page must have one of the best resumes
in American history, perhaps slotting in after William Howard Taft (Solicitor
General, President, Yale Law professor, and Chief Justice of the Supreme Court)
and Sam Houston (Governor of two states, senator from one state, General, President of a foreign country, and giver of name to the city housing some of our favorite plaintiff lawyers), and just in front of Diane Keaton (female lead
in both the greatest film drama and film comedy ever). In addition to Justice
Page, Minnesota also has some brilliant federal judges. We’ve been on panels
with a couple of these judges, and they possess brilliant
intellects, turbo-charged work ethics, and vibrant senses of humor.


So, again, what’s not to like about Minnesota? Well, there
is that ridiculously long statute of limitations (six years). As we have written about
(here, for example), Minnesota’s statute of limitations inspires plaintiffs
having no connection to the Gopher State to file their cases in Minnesota. For
years, the courts there treated statutes of limitations as procedural rather
than substantive, and thus automatically applied the Minnesota statute of
limitations. In 2004, the Minnesota legislature passed a law providing that if
an out of state plaintiff brings a claim based on the substantive law of another
state, the other state’s statute of limitations applies. Nevertheless, as we
discussed here, filings by out-of-state plaintiffs significantly increased
after passage of the new law. The law was prospective only, so perhaps
plaintiff lawyers decided to get in while the getting was good.

Minnesota still attracts filings by out of state plaintiffs.
But the courts now seem a tad less tolerant of such litigation tourism. In
Caraballo v. Novartis Pharmaceuticals Corp., No. 07-4598 (D. Minn. Dec. 4,
2012) (slip op. available here), the court granted a motion to transfer a case to the Northern District
of Ohio and denied the plaintiff’s request to attach Minnesota’s statute of
limitations prior to transfer. The plaintiff was an Ohio resident. She filed
her case in Minnesota. The case was then transferred to the Aredia-Zometa MDL
in Tennessee. After close of discovery, the case was remanded to Minnesota. And
here we are, in the home of Jesse “the Body” Ventura and The Mary Tyler Moore Show. As for
why we are here, the court authors a paragraph startling in its clarity and


“This is one of thousands of product-liability actions filed
in the District of Minnesota by plaintiffs who have no connection to Minnesota
against defendants who have no connection to Minnesota regarding events that
did not occur in Minnesota and that had no impact within Minnesota. The vast
majority of these actions have been filed in this district because, if they
were filed by the plaintiffs in their home states (or almost anywhere else),
they would be dismissed under the applicable statutes of limitations.”


Caraballo, slip op. at 2.


The issue was whether the case should be transferred
pursuant to 28 U.S.C. section 1404 (a) for the convenience of the parties and
in the interest of justice. The court concluded that “Minnesota does not appear
to be convenient for anyone – including Ms. Caraballo, who lives in
Ohio.”  Id. at 3.  The prescribing and treating physicians were also
in Ohio.  As for the interests of justice, only one of the factors — the
plaintiff’s choice of forum — helped the plaintiff.  But all the others,
such as judicial economy, costs to the parties, ability to enforce judgment,
conflict of law issues, and advantages of having a local court determine local
questions of law, were either neutral or favored transfer to Ohio.

But plaintiff lawyers are persistent.  As an
“ancillary” matter, the plaintiff asked the court to rule that
Minnesota’s statute of limitations would govern the case following transfer to
Ohio.  The fig leaf of support for this request is that actions
transferred under section 1404(a) typically retain the law of the transferor
forum.  But the Minnesota court rejected the plaintiff’s request, and
thereby frustrated what can only be called a scheme, because “judicial
comity disfavors such a declaration.”  Slip op. at 5.  The
Minnesota court left it to the Ohio court to resolve the statute of limitations


We are glad to see this logical, fair-minded result, and are
glad that Joe Hollingsworth was kind enough to make sure that we had some good
Aredia-Zometa news to report to help offset the bad news.