Photo of Stephen McConnell
That would be Dr. Suzanne Parisian, of course.  In truth, we’re not saying Dr. Parisian knows too much. Far from it.  It’s more that she always says too much. But we’ve been reading a lot about Alfred Hitchcock lately (because of both the Anthony Hopkins feature film, “Hitchcock,” and the HBO movie, “The Girl”),  so we couldn’t resist appropriating the title of the only film that Hitchcock made twice. The earlier version of “The Man Who Knew Too Much” (1934) was Peter Lorre’s first English-speaking role. The remake (1956) starred Jimmy Stewart and Doris Day.  Both films involve couples who accidentally learn about an assassination plot. To assure silence, the malefactors kidnap the couples’ child. In both movies, the wife has a skill that she underplays or puts aside for the sake of domestic felicity. In the earlier film the wife was an expert shooter. In the latter, Doris Day was – surprise – a singer. Famously, Doris Day calls upon her singing talent, warbling “Que Sera, Sera” to rescue her child.
Dr. Parisian will sing about pretty much everything. We’ve been known to complain about that. But in a recent unpublished opinion from the Fosamax litigation, Parisian said a little too much, and it cost the plaintiff.  Last week we reported on a published opinion from the Fosamax case.  Today, we will mention some goodies from the companion unpublished opinion, In re Fosamax Products Liability Litigation, 2013 U.S. App. LEXIS 2042 (2d Cir. January 30, 2013), including the interesting role played by Dr. Parisian.  The plaintiff had brought suit alleging that Fosamax caused osteonecrosis of the jaw (“ONJ”).  The jury returned a verdict for the defendant.  The plaintiff appealed, challenging jury instructions, exclusion of expert testimony, and admission of evidence of a settlement with another defendant.
The Second Circuit held that the trial court did not err in instructing the jury on Florida’s “government rules defense.” Like several other jurisdictions, Florida statutory law creates a rebuttable presumption that a product is not defective where the manufacturer has complied with the applicable laws or regulations designed to prevent the type of harm that occurred. Fla. Stat. Ann. § 768 1256 (1). The plaintiff argued that because she alone offered a regulatory expert at trial, Dr. Parisian, and because Dr. Parisian concluded that the defendant had violated several FDA regulations in selling Fosamax, the District Court erred in concluding that the defendant had established a prima facie case sufficient to support a jury instruction on the rebuttable presumption.  But it turns out that the defendant managed to make its prima facie case courtesy of Dr. Parisian.  On cross examination, Dr. Parisian conceded that the FDA had approved Fosamax and its labeling.  How could she do otherwise?  The court held that Dr. Parisian’s admission entitled the defendant to the instruction regarding the presumption as a matter of law, notwithstanding Dr. Parisian’s (inevitable) opinion that the defendant also violated certain FDA regulations. Dr. Parisian’s credibility, moreover – both as to her testimony regarding the FDA approval’s of Fosamax and her opinion that the defendant had violated various FDA regulation – “was an issue for the jury.”  2013 U.S. App. LEXIS 2042 at * 6-7.  Que sera, sera.
There was another issue regarding jury instructions and it related to Florida law on product risks and benefits.  The Second Circuit upheld the “objective” standard instruction, which asked the jury to consider the risks and benefits of Fosamax to the public as a whole, as opposed to directing the jury to consider the drug from the perspective of either a particular user or a sub-category of users. Federal and state courts in Florida have employed an “objective” standard for the risk-benefit test. See, e.g., Jennings v. BIC Corp., 181 F.3d 1250, 1255 (11th Cir. 1999) (applying Florida law and concluding that “defectiveness of a design is determined based on an objective standard, not from the viewpoint of any specific user”); Liggett Grp., Inc. v. Davis, 973 So.2d 467, 475 (Fla. Dist. Ct. App. 2007) (same).
The plaintiff argued that the district court erred in excluding opinions from two of her experts.  The opinions concerned regulatory and medical causation issues.  First, the plaintiff offered opinions from a Dr. Epstein about his clinical experience in prescribing Fosamax.  Those opinions included his “opinion that the FDA is not infallible.”  Id. at * 9.  The Second Circuit concluded that Dr. Epstein was not “qualified to opine on the quality of the FDA’s work.”  Id. at *10.  He was the Dr. Who Knew Too Little.  Second, the plaintiff proffered an opinion from her treating physician, Dr. Marciano, that Fosamax caused her ONJ.  “Because Dr. Marciano’s opinion was offered in his capacity as her treating physician, it was properly limited to his personal knowledge developed during the course of his treatment” of the plaintiff.  Id. at *10, citing Fed. R. Evid. 602. But Dr. Marciano did not personally know the length of time that the plaintiff had used Fosamax; rather, he was relying on another doctor’s medical records — which were not a part of Dr. Marciano’s medical records.  Accordingly, the Second Circuit held that Dr. Marciano’s medical causation conclusion was properly excluded because it was “largely dependent on and derivative of Dr. Marx’s opinions rather than any scientific inquiry conducted or treatment provided by Dr. Marciano himself.”  Id.
The plaintiff also argued that the district court erred by allowing the defendant to reference the plaintiff’s lawsuit against her dentist, the resulting settlement of the lawsuit, and the amount of the settlement. The plaintiff had filed a motion in limine on these matters and lost.  After losing her motion in limine, the plaintiff’s lawyer fronted the issue by informing the jury of the lawsuit and settlement in her opening statement.  Further, the plaintiff testified about these matters on direct examination. It is well-established that a party introducing evidence “cannot complain on appeal that the evidence was erroneously admitted,” even when that party loses a motion in limine and then preemptively introduces the evidence to draw the “sting.” Ohler v. United States, 529 US. 753, 755, 757-58 (2000). The plaintiff attempted to distinguish her introduction of the fact of settlement from the defendant’s introduction during the plaintiff’s cross-examination of the amount of the settlement ($350,000).  But the court held that the amount of the settlement was admissible to rebut the plaintiff’s “suggestion, in her opening statement and direct testimony, that the settlement was negligible because the lawsuit involved her teeth, not her jaw.”  Id. at *11.  That might be another example of hurting one’s cause by saying too much.