Many of our posts are inspired by attorneys who relay their latest wins to us. Since we make no bones about our intention of aiding and abetting the defense cause, it is no surprise that it is usually fellow defense hacks who do the relaying. Sometimes there is a whiff of self-promotion, sometimes not. We frankly do not care. If it constitutes news-defendants-can-use, we are grateful to get it. Call it legal capitalism at its finest.
Believe it or not, occasionally plaintiff lawyers send us case results. Whether such efforts represent promotion, correction, or sadism, we cannot help but admire the enterprise and temerity. We have no desire to publicize bad results if there is any decent chance that such publicity could cause proliferation, but most of the time it is better to know about traps for the unwary (or the wary; or the unlucky; or anyone in Madison County). In The Godfather, Tom Hagen says that Mr. Corleone insists on getting bad news quickly. We agree. We’re just sorry we cannot deposit a horsehead in the malefactors’ beds.
Strangest of all is when we get case reports from both defense and plaintiff lawyers. Is there self-delusion going on? Or, as is more likely, does the case contain goodies for both sides? Last week’s rulings on pretrial motions in Earp v. Novartis Pharmaceuticals Corp., 2013 WL 4854488 (E.D.N.C. Sept. 11, 2013), gave a little bit to each litigant. We will emphasize the parts we like best. Rather than curse the darkness, we will paint a one-sided view of the candle.
No Leave to Amend the Complaint
Earp is another case where plaintiffs claimed osteonecrosis of the jaw (ONJ) from taking Aredia-Zometa. The plaintiffs wanted to amend their complaint to add a claim under North Carolina’s Unfair and Deceptive Trade Practices. The court ruled that the plaintiffs failed to show good cause under rule 16. Amendment denied. Earp, 2013 WL 4854488 at *2.
We are off to a good start.
Daubert Motions: Always Look at the Bright Side of Life
Then we get to the defense Daubert motions to preclude or limit certain testimony from the plaintiff experts. This portion of the decision was more of a mixed bag. The court talked about the flexibility of Daubert and how cross-examination, presentation of contrary evidence, and limiting instructions can deal with “shaky but admissible evidence.” Id. at *4. That sort of thing is usually a prelude to an en masse denial of the Daubert motions. Not here. The court came up with some good rulings:
* Dr Marx
The court held that Dr. Marx lacked a basis to testify that the defendant lacked “good faith.” Nor could Dr. Marx criticize the defendant’s “clinical trials or opine on patients in those trials given his lack of expertise or any reliable methodology.” Id. at *3. Yay. We applaud any court that rejects Marxist orthodoxy.
* Dr. Parisian
We do not know whether Dr. Parisian’s report in this case was the usual 350-plus paragraph magnum opus, where a concatenation of almost random recitations of company documents allegedly props up the usual opinions of understating risks, overstating benefits, and hoodwinking the FDA, doctors, and patients. Maybe in this case Dr. Parisian supplied the AM version — say, a mere 200 paragraphs. (To this day, Bexis cannot forgive AM radio stations for shortening The Doors’ “Light My Fire.” For us, the Procrustean treatments of “American Pie” and “In a Gadda Da Vida” visited traumas upon us that resonate still.) Sadly, the court found that Dr. Parisian might help the jury understand “the FDA drug-approval process including regulations governing the approval, advertising, and marketing of pharmaceuticals.” Id. We’re not sure why this sort of background needs to be paraded before the jury. Seems like dull, harmless stuff, doesn’t it?
But watch out. Once Dr. Parisian starts talking about the FDA, and how the poor little FDA is utterly at the mercy of the big bad companies, she will also find ways to opine on everything else, including legality, morality, epistemology, cosmology, anthropology, geology, herpetology, and astrology. That being said, the court seems on guard here, ruling that Parisian would not be allowed to opine on whether the defendant “complied with the regulations, industry ghostwriting or funding of scientific studies, causation, whether the labels provided adequate warnings in this case, state of mind, or to provide other testimony that would be unduly prejudicial, irrelevant, or outside the scope of her expertise.” Id. at *4. Good ruling. And good luck trying to corral Parisian once she starts to wander (or whatever it is that cattle do that requires them to be in a corral).
* Dr. Skubitz
The court deemed Dr. Skubitz to be a qualified expert with a reliable basis to offer testimony regarding the efficacy of pretreatment dental screening in preventing ONJ, but would “not permit him to testify about alternative dosing or labeling.” Id. Apparently, the plaintiffs think that any doctor who has read a label is an expert on what should and should not go into a label.
* Dr. Vogel
As with Skubitz, Dr. Vogel would be allowed to render doctorly opinion evidence on things such as the efficacy of pretreatment dental screening in preventing ONJ, the incidence rate of ONJ, the efficacy of reduced dosing schedules, and general causation. At the same time, the court threw up a roadblock to Parisian-land by forbidding Dr. Vogel from testifying about corporate conduct or labeling. Id. Are you getting the sense that the plaintiffs really, really want a credentialed expert to tell the jury that the label was bad? And that the corporate documents are bad? The court’s exclusion of this nonsense is absolutely correct. After all, when was the last time that your doctor showed up in that little room where you were waiting nervously, took your temperature, asked you to cough twice, and then shared with you his interpretation of marketing department emails?
Summary Judgment: Adios to the Warranty, Manufacturing, and Design Defect Claims
The defendant also filed motions for summary judgment. The arguments on statute of limitations, medical causation, adequacy of warnings, warning causation, and implied warranty were rejected. The court does not supply a whole lot of analysis on these points, so we do not know how much we dislike those rulings. Then again, it is not as if the court’s rulings are likely to be effectively cited by future plaintiffs trying to fend off summary judgments. The good news is that the court did grant summary judgment and dismiss the claim for express warranty on the ground that … wait for it .. there was no evidence of any express warranty. Id. at *5. The court also granted the strict liability/manufacturing defect claim because the plaintiffs were “not pressing” it. Id. at *6. Let’s face it: they almost never do. Why do plaintiffs blithely toss in a manufacturing defect claim even when they haven’t the slightest shadow of hint of a morsel of evidence that there was an manufacturing defect? Rule 11, anyone? Anyone?
Best of all, the plaintiffs’ design defect claim was shot through with holes because the plaintiffs “have not alleged or produced evidence of any safer alternative design that would have prevented or substantially reduced the risk of harm of using Aredia or Zometa.” Id. Indeed, the very evidence relied upon by the plaintiffs showed “that physicians continue to prescribe and use Aredia and Zometa after becoming aware of the allegedly defective design of the products.” Id.
* * * * *
It was a plaintiff lawyer who first sent us this case. That’s not so hard to understand. But after reading the case, we thought to ourselves, why, it isn’t so bad for us after all. Earp lends at least as much ammo to us as to the gunslingers on the other side.