Photo of Stephen McConnell

Not to complain or anything, but these are rough days. We were stunned by the last episode of Downton Abbey. [SPOILER ALERT for you pathetic Nigel-Come-Latelies to Downton Abbey.  Skip to the third paragraph if you are still catching up via your Betamax machine.  By the way, you might also want to try listening to a hot new musical group called The Beatles.  Also, check out vanilla ice cream.  It’s an acquired taste, but pretty darn good.]  When has a series killed off two main characters (and, arguably, the most important character, in terms of setting action in motion and being transformative) in the same season? The show is well written and splendidly acted, but it is, at bottom, cruel. The resumption of Breaking Bad will actually come as a relief; sure, there’s lots of drug dealing and murder in it, but it does not toy with our emotions nearly so much as those arch Brits. (For an interesting mash-up, see the “Breaking Abbey” skit here.)  From what we hear, the latest Downton death came about because the actor wanted to abandon the show for other acting opportunities. Mr. Stevens, we mutter a few curse words in your direction: “Daniel J. Travanti” and “David Caruso.” Good day, sir!

The expiration of a charming fictional lawyer followed by only a few days the death of a real life, regal legal eminence, Ronald Dworkin. In our first year of law school the great Edward Levi taught a class called “Elements of the Law,” which addressed the Big Questions – certainly bigger than the Rule in Shelley’s Case or the distinction between larceny by trick and obtaining property by false pretenses. In “Elements” we read from the likes of Bentham, Rawls, and Dworkin. We struggled mightily to follow Dworkin’s intricate analyses. How can a book with such a straightforward title, Taking Rights Seriously, be encumbered with such impenetrable prose? And yet Dworkin’s insistence on law’s moral dimension was undeniably refreshing. Dworkin was the second most cited legal scholar of the 20th Century, exceeded only by our favorite Seventh Circuit Judge, the one who launched our occasional postings on why “There’ll Always be Posner.” Dworkin ennobled our profession, even as he often puzzled it.

Meanwhile, the same issue of the Wall Street Journal with Dworkin’s obituary also informed us that fish exposed to certain anti-anxiety drugs (via industrial run-off or sewage) become less social but braver. Granted, we are not sure how to define ichthyo-courage, but the story had us hooked. It also made us feel somewhat anxious. As is all too often the case, we find ourselves wondering how bits of news and popular culture would affect judges and jurors. It might well be that a timid perch could benefit from a random dose of an antianxiety medication. The fish’s consumption of the Mickey Fin might have been off-label, but we do not think an over-enthusiastic sales rep played any role in luring in that particular customer.  Still, we couldn’t help but think that some readers would take this fish-story (the one that did not get away) as further evidence of corporate perfidy and bad drug side effects. We are swimming through the waters of a double standard. The scales are weighted against corporations, which are held to a higher standard and suspected of the worst means and motives.

Speaking of side effects, we capped off the week by seeing a movie by that name. Side Effects is the new (and, by the director’s account, last) Steven Soderbergh film. The coming attractions promised yet another ugly cinematic portrait of drug and device companies, as in The Constant Gardener and Love and Other Drugs. Nevertheless, while Side Effects has a couple of negative references to drug marketing, it says at least as many bad things about doctors and patients as about companies that sell products. ‘ Trust nobody’ seems to be the message. Fine. Done.

When we surveyed the weekly docket, we were looking for a way to rinse off all this depression and anxiety. At a minimum, we were looking for a case where our side did not get burnt by the usual double standard. We found that case in the Accutane MDL – specifically, Aranda et al. v. Hoffman-Laroche, 2013 WL 562707 (M.D. Fla. Feb. 14, 2013), where the court ended up denying the plaintiffs’ tardy effort to name a general causation expert witness and consequently granted summary judgment and dismissed 40 cases.

The Aranda plaintiffs filed their multi-plaintiff action in Illinois state court, alleging that they developed inflammatory bowel disease (“IBD”) as a result of their use of Accutane.  The case was removed to federal court, and then was sent to the Accutane MDL. Here is the relevant chronology:

  • Earlier in the MDL, the court had struck the plaintiffs’ IBD general causation expert.
  • The magistrate judge issued a scheduling order for all new cases in the MDL, requiring plaintiffs to name general causation experts four months after transfer to the MDL.  The order made clear that extensions “should not be anticipated.”
  • In July 2012 the magistrate judge held a status conference and set a November date for plaintiffs to disclose their experts. Plaintiffs’ counsel attended telephonically. The magistrate judge issued a scheduling order, though the plaintiffs’ counsel later claimed they never received a hard copy of the order.
  • In September 2012, the court severed the Aranda cases and forced the filing of separate complaints. The severance order referenced the July scheduling order.
  • November 2012 came and went without any designation by the plaintiffs of a general causation expert.
  • In December 2012, the defense counsel sent a letter to plaintiffs’ counsel asking why they had not yet disclosed their experts. There was no response.
  • The defendant filed a summary judgment motion in January 2013.  On that last day of that month, the court issued an order to show cause directing plaintiffs’ counsel to file a response to the summary judgment motion.
  • Only after that did plaintiffs seek an extension of time to name their expert.

The issue was whether plaintiffs’ counsel had established “good cause” to modify the scheduling order pursuant to Fed. R. Civ. P. 16(b)(4).  The judge saw no such good cause, finding that the plaintiffs “do not present any legitimate excuse for failing to meet the Court’s deadlines.”  2013 WL 562707 at *2.  The plaintiffs’ counsel’s claim that it did not receive a hard copy of the July 2012 scheduling order was “disingenuous” in light of the plaintiffs’ telephonic presence at the conference.  Id.  The court noted that the plaintiffs’ counsel’s failure to sign up for electronic service notifications was not a valid excuse.  Id. at n. 1.  Further, the CM/ECF system showed service of a hard copy of the July 2012 scheduling order at two separate addresses. Anyway, why wouldn’t counsel have made some sort of inquiry after not receiving the order?  Moreover, plaintiffs’ counsel clearly received the September 2012 severance order — inasmuch as they complied with it — and that order specifically referenced the earlier scheduling order.

Perhaps the most damning evidence was the plaintiffs’ counsel’s failure to respond to the defense counsel inquiry in December. To make matters worse, though the Aranda cases had been lingering for 19 months, the plaintiffs’ counsel admitted they had not begun looking for an expert until after receiving the inquiry from defense counsel. The court found that admission “inexplicable.”  Id. at *3.  Here is the court’s conclusion:  “Their failure to do anything with respect to locating an expert until December 14, 2012, already one month after the disclosure deadline, is inexcusable and demonstrates an utter lack of diligence to pursue their claims in this case.  Their delay of another month and a half after the letter before seeking an extension of time is similarly inexcusable. Accordingly, their motion for an extension of the expert deadlines is denied.”  Id.

Without a causation expert, summary judgment was a foregone conclusion. Those 40 cases are gone.  It is as if they had crashed and are now overturned in a ditch by the side of the road.