We stand at the midpoint of our journey around the Sun. 182 days precede us this year, and 182 remain before 2013 concludes. July 2 is a big day historically, and not just because it is the day when Larry David and Lindsay Lohan entered this world and Vladimir Nabokov left it. Exactly 237 years ago in Philly our Founders approved the Declaration of Independence. There is a good argument that we should celebrate the Second of July rather than the Fourth, when the Declaration was publicized. Zounds, why not celebrate both? Who can get enough barbecues and fireworks?
150 years ago on this date Joshua Chamberlain and his Maine boys held Little Roundtop and prevented day 2 of the Battle of Gettysburg from turning into a very bad day for the Union. (Bexis is vacationing Down East and reports that the weather is miserable there and that it is no wonder the Maine contingent took their chances at Gettysburg.) As we sweat in this soupy weather, barely able to rouse ourselves from terminal torpor, it seems a good time to reassess where we are, to count our blessings, to acknowledge the bravery and sacrifice of our predecessors, to laugh at the faults of others and grieve at our own … and to talk once again about the Aredia-Zometa litigation.
Last week was eventful in the Aredia-Zometa litigation. After a two-week trial, a jury in the Eastern District of California returned a defense verdict in Hill v. Novartis Pharmaceuticals Corp., No. 1:06-cv-00939-JSR-SAB (E.D. Cal. June 26, 2013). Any drug and device trial is likely to catch our attention, but this one was especially interesting because it was presided over by Judge Rakoff, who hails from the Southern District of New York and was sitting by special designation. For those of you who follow securities and other financial litigation, you know that Judge Rakoff is brilliant, opinionated, and strong-willed. If he does not like a proposed settlement, he will not approve it. We remember going to a RICO conference over 20 years ago where Rakoff was one of the two MCs. He was then at the Mudge Rose firm, where Richard Nixon practiced law once upon a time. It was clear that Rakoff was lightning smart. After one session, we went up and chatted with him about some of the intricacies of the much-overused RICO statute. Rakoff was helpful. He was nice.
From what we hear now, he can be utterly terrifying,. He is one of those judges, like Posner and Kozinski and Boggs, who are not the least bit shy about letting all the lawyers in the courtroom know that those lawyers are disappointingly small-minded or just plain dumb. Perhaps it is no coincidence that those judges also seem happy to explore new judicial assignments and adventures.
Anyway, in the Hill Aredia-Zometa case we get the feeling that Judge Rakoff was rather more terrifying toward the plaintiff than the defense side. He had indicated at the beginning of last week that he was inclined to grant the defense motion for a judgment as a matter of law on the issue of proximate causation. The defendant argued that the plaintiff failed to prove that a different or earlier warning would have altered the behavior of the prescribing and treating physicians. Judge Rakoff agreed, finding that plaintiff had provided an “extraordinarily minute amount of relevant evidence” on the issue of proximate causation and that any decision of the jury would not be based on logic and be “nothing more than a guess.” Judge Rakoff had already dismissed the plaintiff’s claim for punitive damages, seeing no evidence “on which a reasonable juror could remotely find the elements of punitive damages.” Nevertheless, Judge Rakoff allowed the jury to deliberate and render a verdict on the liability issue. They did the right thing and now plaintiffs in all likelihood will have an extraordinarily minute chance of mounting any sort of appeal.
In Taylor v. Novartis Pharmaceuticals Corp., No. 0:06-cv-61337-JIC (S.D. Fla. Jun. 27, 2013), the defendant avoided trial by getting the case dismissed. As we have seen in other cases (here and here, for example), the plaintiff’s action was foreclosed by judicial estoppel from failure to list the tort action as an asset in a bankruptcy proceeding. That sort of thing is a cheat on creditors and a cheat on the judicial system. And it is more common than you’d think. The plaintiff in Taylor had filed for Chapter 7 bankruptcy in 2010, three and a half years after filing his Aredia-Zometa lawsuit. During his bankruptcy proceedings, the plaintiff “inexplicably” failed to disclose his pending claim against Novartis to the bankruptcy court as required. Order at 7. The court in the product liability case was not amused. It determined that “the record unequivocally establishes that Plaintiff had a motive to conceal this lawsuit from the Bankruptcy Court: namely to obtain a discharge of nearly $200,000 in debt while any funds he later recovered in this case would be his own.” Id. There was nothing inadvertent about the inconsistency between the plaintiffs’ positions in the bankruptcy and tort cases. Because “[f]ull and honest disclosures in bankruptcy proceedings are ‘crucial to the system’s effective functioning,” Id. at 6, the “Plaintiff has made a mockery of the judicial system.” Id. at 8. Based on these conclusions, the Court applied the doctrine of judicial estoppel and dismissed the plaintiff’s case, preventing him from asserting the inconsistent position that he had a claim against Novartis after stating under oath in the bankruptcy proceeding that he did not.
Congrats to our friends at Hollingsworth, Faegre, and Farella. (Those are three different firms – if it was one, it would be pretty good. We might even rank it above David, Lohan, & Nabokov.)