The geezers in our family have been busy recently ululating over the rule of three celebrity deaths. We are not sure we have ever before witnessed a trilogy quite like Roger Ebert, Margaret Thatcher, and Annette Funicello. An aunt insists that it is actually a trilogy of three celebrity women, with fashion designer Lily Pulitzer taking the place of Roger Ebert.
Truth be told, the death of Roger Ebert had singular significance for us. Maybe it’s another example of how the popular culture enjoyed between ages 15 and 20 seeps into your marrow. Ebert and Siskel began their tv show in 1975, the year of Jaws. The show started on a local Chicago channel, went nationwide on PBS, then became a syndicated profit machine. Watching a bald guy and a fat guy argue
over movies was curiously irresistible, and that was because both guys were smart and funny. Ebert was the first film critic to reel in a Pulitzer Prize, but Siskel had courtside Bulls seats. Siskel died much too young, and Ebert ultimately penned a splendid tribute that revealed just how much he respected and loved his faux foe.
It is probably no exaggeration to call Ebert the country’s most famous, popular film critic. Ebert was insightful, accessible, and helpful. Even if you did not agree with all of Ebert’s evaluations, he explained them so clearly that his reviews enabled you to predict whether you would like the movie. His website and his books are simply indispensable. He was not always right — he hated A Clockwork Orange and Blue Velvet. But his reasons for hating those movies – because they were cruel – sprang from Ebert’s basic decency.
Ebert had a talent for life. He could show up on the Howard Stern show and give as good as he got. He made shrewd investments in tech stocks, such as Google. Most important, it turns out that the only thing more noteworthy than Ebert’s analytical power was his relentless niceness. Over the last week we have read many stories of people whose lives were touched by Ebert’s kindness. He genuinely liked to engage with his readers. He helped out people’s careers. He once went on a date with a local Chicago television personality and found himself explaining the economic benefits of television syndication. Romance did not bloom, but his date seemed to be paying attention, because Oprah ended up doing pretty well in the tv business.
One of the lead writers on the Deadspin sports website, Will Leitch, wrote a lovely column about how much he owed to Ebert, who taught him in a class at U. Illinois, and how Ebert was able to forgive an extraordinary act of journalistic nastiness on Leitch’s part. Leitch was prompted to write his article after Ebert was hit with an especially cruel cancer that took away Ebert’s jaw and his voice. But Ebert’s voice was not really silenced. He continued to review movies, right up to the end, and became a prolific, lively Tweeter. Just two days before his death, Ebert announced that his cancer returned, that he would take a “Leave of Presence” (elegant phrase), but that he still had plans to keep busy.
Anyone who blogs and engages in anything approximating criticism owes Ebert and Siskel a debt. They modeled how to engage in vigorous debate. They justified their aesthetic judgments. Even when they turned their arguments into a full contact sport, they never strayed far from civility. Both on blogs and in courtrooms, we could use a lot more Roger Ebert and a lot less of the meanness and pettiness we encounter all too often.
We hope we do not seem mean or petty when we tell you that Dopson-Troutt v. Novartis Pharmaceuticals Corp., 2013 U.S. Dist. LEXIS 48325 (M.D. Fla. April 2, 2013) is a terrible decision. Dopson-Troutt is yet another case where a plaintiff claimed that Aredia-Zometa caused osteonecrosis of the jaw (ONJ). We mentioned this case at least once before, when the MDL judge refused a request to consolidate cases. That was a good ruling. But then the case got remanded to the Middle District of Florida, and the rulings have taken a turn for the ugly. For example, there have been some bad rulings permitting Parisian to render her usual cornucopia of ‘expert opinions.’ And just when you thought it was safe to get back into the water …. The plaintiffs filed suit against NPC for strict liability, negligent manufacture, failure to warn, breach of express warranty, breach of implied warranty and loss of consortium. The defendant filed a motion for summary judgment. The initial issue was whether Florida or Pennsylvania law applied. The drug infusions and the tooth extraction occurred in Pennsylvania. The treatment received in Florida occurred after the events that are alleged to have caused the injury. The court thus concluded that the state with the most significant relationship to the claims alleged is Pennsylvania, and the court purported to apply Pennsylvania law. Thus, when the court goes on to mangle the law,
it is mangling the law of our home jurisdiction. Early on in the opinion, we were seized with a feeling of dread. It was kind of like, “You’re gonna need a bigger boat” (except maybe substitute “smarter” for “bigger”).
We get the feeling that there isn’t much evidence of warning causation in Dopson-Troutt. The prescriber “did not testify whether he would or would not have continued to prescribe … Aredia and Zometa if he had been aware of the drugs.” Dopson-Troutt, 2013 U.S. Dist. LEXIS 48325 at *10. Well, that ends that, no? No. The doctor testified that he diagnosed the plaintiff’s jaw pain as ONJ, caused by her use of Aredia and Zometa and the tooth extraction, and he “recommended that she no longer receive Zometa infusions until her dentals problems were cleared.” Id. So what? That does not come close to meeting the plaintiff’s burden to show that a different warning would have made any difference. But, wait, there’s more:
“Furthermore, [the plaintiff] herself testified that she would not have
continued taking the drugs if she had been adequately warned about their risks.”
Id. Wait a minute – Pennsylvania has the learned intermediary rule. Why does the plaintiff’s testimony matter even a little bit? Plus, would you really expect a plaintiff to say anything else? Plus plus, Pennsylvania law bars any use of the heeding presumption in pharma cases (e.g., Demmler).
NPC next argued for summary judgment on the design defect claims based on the protections of comment k of the Restatement (Second) of Torts. Of course, whether the Second or Third Restatement governs in Pennsylvania is now a matter of some controversy, but the Florida federal court wanted no part of that controversy. Comment k to the Restatement (Second) of Torts Section 402A provides that certain drugs that are “properly prepared, and accompanied by proper directions and warnings are not defective nor [are they] unreasonably dangerous.” Comment k requires that the products, or drugs, be accompanied by proper directions and warnings. But the Florida court “has already ruled that there are disputed issues of material fact as to the adequacy of NPC’s warnings.” Id. at * 12. So there. One problem: Comment k is a complete strawman because Pennsylvania law is crystal clear that there is no strict liability design defect claim against prescription drugs. Did the Florida library or Lexis/Westlaw portal somehow not include the Lance and Hahn cases? Except that Dopson-Troutt actually cited Hahn v. Richter, 543 Pa. 558, 673 A.2d 888, 890-01 (Pa 1966)! Did the court not read that case? Since there is no strict liability either way (the Third Restatement is negligence-based except for manufacturing defect), we cannot conceive of any way that this design defect claim should still be around.
Finally, NPC argued that it was entitled to summary judgment on the claims for breach of express and implied warranty because the plaintiff was not in privity of contract with NPC. But that point poses no problem for the Dopson-Troutt court, because “the Pennsylvania Supreme Court has eliminated the requirement of privity in breach of warranty actions.” Id. at *13. Privity/schmivity. Privity is how Florida law deals with warranty actions. But Pennsylvania law gets rid of warranty claims for policy reasons having nothing to do with privity. The Makripodis case says that warranty claims against prescription drugs would basically amount to being strict liability claims and are, thus, basically baseless.
The Dopson-Troutt case thus managed to get Pennsylvania law wrong in multiple ways. The Dopson-Troutt case stinks. It is as bad as Leonard, Part 6. It is as bad as Plan 9 from Outer Space. It is as bad as – dare we say it? – Jaws: The Revenge.
We are reminded that, with all the eulogies about how nice Ebert was, he was a master of skewering terrible movies. Ebert could pen lines that were beautifully poisonous. To wit:
“I hated this movie. Hated, hated, hated, hated, hated this movie. Hated it. Hated every simpering stupid vacant audience-insulting moment of it. Hated the sensibility that thought anyone would like it. Hated the implied insult to the audience by its belief that anyone would be entertained by it.”
Mad Dog Time, 1996
“Mad Dog Time is the first movie I have seen that does not improve on the sight of a blank screen viewed for
the same length of time. Oh, I’ve seen bad movies before. But they
usually made me care about how bad they were. Watching Mad Dog Time is like waiting for the bus in a city where you’re not sure they have a bus line.”
Battlefield Earth, 2000
“Battlefield Earth is like taking a bus trip with someone who has needed a bath for a long time. It’s not merely bad; it’s unpleasant in a hostile way.”
The Brown Bunny, 2003
“I had a colonoscopy once, and they let me watch it on TV. It was more entertaining than The Brown Bunny.”
“No matter what they’re
charging to get in, it’s worth more to get out.”
How can reading criticism of something rotten manage to bring such joy? We’ll always be grateful to Ebert. It is sad to see the balcony closed.