Bexis is away on vacation this week. In the past when Bexis has vacated, some uncharitable readers have alleged that the posts on this blog become lighter, maybe even frivolous. We object. You’ll find just as much snarkiness this week on preemption and the learned intermediary doctrine. You’ll probably find yet another discussion of yet another Aredia-Zometa case. But today you’ll find something a little different. We hereby offer a counterfactual travelogue. Luckily for you, we cannot force you to watch the slide show.
Bexis takes great vacations. He takes active, muscular vacations. The walls of his office are covered with photos of craggy canyons, menacing volcanoes, and generous waterfalls he has explored. Let’s face it: Bexis is the Teddy Roosevelt of vacationing lawyers. He clears more than legal underbrush. You have probably heard people joke that they wish they could be adopted by some rich person. That’s how we feel about Bexis. We wish Bexis would take us on one of his fabulous treks. But this year, once again, he didn’t. Once again, we are left in Philly, forlorn and forgotten.
And yet, nothing can stop us from imagining what it would be like to travel with Bexis. One wouldn’t have to strain one’s imagination too hard to conjure up an exciting Drug and Device Law itinerary.
Boardwalk Empire/City of Brotherly Love
Mountains or the beach – that’s always the question, isn’t it? Of course with Bexis, you are likely to get both. We proposed Huntington Beach, to see if Bexis could hang ten. But he put the kibosh on anything involving California: “There are already too many litigation tourists there. Oddly, they always congregate in groups of just under 100. None of them has ever been to California before. They all met on the Internet. And their sunglasses all came from the same distributor, no matter where, when, how many times, or for how long they bought them.” We didn’t get what he was talking about, and we suggested that the virtue of California was its reliably good weather. “There’s nothing reliable about Cali,” he sputtered, “you know what they say out there don’t you? ‘Reliance, we don’t need no stinking reliance!”
Clearly, if we were going to a beach, it would be on our side of the continent. And it would be a road trip. That’s okay. We have always loved road trips. We remember when we were high school juniors driving down to Charlottesville to visit UVa. We decided to save time by driving our Pinto at top speed (about 40 mph) backwards on I-95 and I-64. Predictably, everyone got out of our way.
We began this sojourn with a hop, skip, and jump to the beach. Bexis gassed up the Pacer, and we doused ourselves with 180 SPF. Out of an abundance of caution, we wore our water wings in the car. Nothing but Air Supply and Insane Clown Posse on the Eight Track. We yellow-highlighted our Let’s Go Jersey guide to make sure we would retrace the Monopoly streets and take in the history of the Miss America pageant.
Because, well, that’s how we roll. Everything must be planned. But Bexis insisted on a little spontaneity. We stopped in at a legendary hoagie shop. Everything about the shop seemed inviting. There were pictures of D-list celebs sampling the subs. The entire cast of Saved by the Bell apparently ate here. The joint was redolent of vinegar and capocollo. But the waitress posed a problem. She wasn’t merely indifferent; she was absolutely hostile. She got all of the orders wrong. She yelled at us. She kept telling us to sit down.
Here’s the odd thing: we were sitting. Then she overbilled us. We beat a hasty retreat and fled the jurisdiction. It’s as if we stumbled into that diner scene in Five Easy Pieces or, come to think of it, that diner scene from The Sopranos finale. It did not end well. As we headed west on the Atlantic City Expressway, we could not help but replay that great movie line by Burt Lancaster. He says that in the old days everything about Atlantic City was better, “even the ocean.”
Our trip did not start out on a good note. Maybe we aimed too low. A vacation is supposed to be about exploring new things. “Look,” we begged Bexis, “let’s put some giddy-up into this journey. We want to see cowboys.”
So, naturally, we crossed over the Ben Franklin Bridge and made our way to Philadelphia City Hall.
Sure enough, half the feet strutting down the hallways were adorned with Lucchese ostrich skin boots. We heard more “Y’all”s than “Youse”s. But these guys weren’t armed with Colts. Rather, they carried spoliation motions. There is no getting around the fact that they seemed at least as comfortable in the CCP as any local. This wasn’t their first rodeo. Except it wasn’t a rodeo (which we actually might’ve enjoyed seeing, especially a prison rodeo); it was a discovery motion calendar. And these Texans were eating our lunch. We mean that literally. After securing a sanction ruling, one of the plaintiff lawyers handed us a tobacco spit cup and a settlement grid, then he relieved us of our roast pork sandwich. Don’t mess with Texas, we guess. Especially in the Philly court system.
Once again, it was time to hit the road. This time we were going to do it proper. American literature is full of road imagery. Think of Jack Kerouac. Think of Hunter S. Thompson. Heck, think of Vladimir Nabokov. Or, if you really want to get depressed, think of Cormac McCarthy. Something about the road captures our country’s sense of possibility, courage, and craziness. We remember Updike’s Rabbit, Run. In one particularly frenzied chapter, the hero jumps in his auto in Pennsylvania and drives and drives aimlessly until he cannot drive anymore. He ends up in West Virginia. Well, that sounds pretty good, doesn’t it? What could possibly go wrong there?
Justice in the Mountains and Along the River
As we crossed over into Wild, Wonderful West Virginia, we became distracted by Bexis’ muttering. To our ears, it sounded like “carsick, carsick.” “Are you okay?” we asked. The roads were getting awfully hilly and the switchbacks could easily make a squeamish passenger dizzy. But it turned out that he wasn’t saying “carsick.” He was saying “karstic.” That is a word of German origin referring to geological formations of soluble rocks, such as limestone or gypsum. It makes for nice scenery, and it also makes for caves. Bexis pulled the Gremlin (we switched vehicles back in Pa) over for a quick bit of spelunking. (Yes, we know that sounds pretty bad. But it just means that he spotted a cave and wanted to explore.) We’d like to tell you about the stalactites and huge open “rooms” and the eyeless fish, but the truth is that we barely made it twenty feet into the cavern before falling and gashing an elbow. The bleeding was bad. It hurt. We started experiencing mental anguish. Medical attention was needed. Bexis got behind the wheel and programmed the GPS to take us to a doctor’s office. We sped past the birthplaces of famous West Virginians, including The Logo (Jerry West) and Mr. Chicken (Don Knotts). We had no time to stop. But every time we got to a medical building, something weird occurred. Bexis would run in to see if they could supply immediate help. Every time, he ran back out, grimly shook his head, and jumped behind the wheel. This was the pattern until we crossed over to Kentucky. By then the wound had scabbed over and it didn’t look so gory. It was only much later that we got an explanation. Instead of simply asking whether there was a doctor who could clean out a cut, Bexis had bellowed to every receptionist that we needed “a learned intermediary, stat!”
No wonder. As we all know by now, there are no learned intermediaries in West Virginia.
So much for Updike. Maybe we should revert to the greatest American journey novel of all, Huckleberry Finn. We would light out for the territories, hightail it to the Mississippi, then follow the Big Muddy down to the Big Easy. Only at the river delta would we finally run out of Big Cliches.
Our Ambassador (the Gremlin had been stolen at a Squirrel Stew festival) had not quite reached the east bank of the river when we decided we were famished. We glided into the drive-thru lane at a McDonald’s in Edwardsville, Illinois. (Okay, now we know that Dedman is getting antsy, certain that a hot coffee case is on the horizon. No such luck.) As we sat by the speaker where we could place our order, Bexis got into a heated argument about the availability of McRibs. Bexis wanted them. This place did not have them. Surely the poor fellow on the other end of the line was puzzled when Bexis started lobbing words like “uniformity,” “reasonable expectations, and “preemption” at him. By this point, we were growing embarrassed. “Let it go, “ we whimpered as we loosened the seatbelt in the Rambler (we exchanged cars with a local in the drive-thru lane), “this is pointless and outrageous and vexing.” But, as usual, Bexis was onto something. Before we made it to the first window, he had e-filed a consumer class action complaint. (He types fast on that Blackberry!) Before we got change, the class action was certified. By the time we were done at the second window, we had four McRibs sandwiches, two coupons for Shamrock shakes, and eighty bucks. Bexis tightened his grip on the steering wheel of the Javelin. (We traded in the Rambler when the radio started refusing to play anything but NPR shows from the 1980s.) “Gas money,” he sneered.
Let the Good Times Roll
After the third Hurricane, the evening started to glow. We kept knocking down all the pins at the Rock N’ Bowl. And by “all the pins,” we mean All the pins – not just the ones in our lane. Gino Delafose and his boys kept the Zydeco going. After the eighth Hurricane … now we were far from the city lights. It wasn’t exactly a swamp, but it wasn’t exactly not a swamp either. It seems we had been taken on a ride by one of our more colorful legal foes. He was perched on the hood of his Bentley, waving a stack of paper. He didn’t like that stack of paper. It was apparently the latest ruling by a federal court in Louisiana on warning causation. He exhaled a bolus of Macanudo smoke and asked us – okay, he asked Bexis – how to get around this ruling. We looked around. The Bentley blocked the road. Otherwise we were surrounded by a lagoon. The lagoon was infested with gators. There was only one choice. In an instant, we wheeled around and ran along the tops of the alligators, not stopping until we found the nearest DRI safe house. The gators didn’t snap once at us. Call it professional courtesy.
Our DDL vacation was drawing to a close. Bexis looked up at the stars. “I believe the light is winning,” he said.
(We decided not to remind Bexis about the Actos case.)