Not quite a year ago we praised a decision out of the Northern District of Georgia for dispatching a plaintiff’s expert after applying Daubert and dispatching an entire case after applying logic. The case was called Brown v. Roche Laboratories, Inc., 2013 U.S. Dist. LEXIS (N.D. Ga. June 6, 2013), and it was another of those sad SJS/TEN cases. The plaintiff expert’s causation opinion was based on a temporal association and not much else. Moreover, as we reported with a surfeit of accuracy and eloquence, “the learned intermediary rule precluded the claim, inasmuch as the doctor knew of the risk and made a considered decision to prescribe the drug in spite of the risk. No expert in the world could solve that problem for the plaintiff.”
It’s seldom a good idea to reread something you wrote a while ago. You plop down in the chair, don the Kmart reading glasses, and take another look at your precious prose. Within seconds, disappointment and embarrassment plop down beside you. Our review of the Brown blogpost was mixed. We think we were right, but we also think we were unduly prolix. We took eight paragraphs to summarize an uncomplicated opinion.
And now the Eleventh Circuit has issued an opinion affirming the lower court’s ruling, affirming our own take on the case, and affirming our hunch that our verbosity was unnecessary. In an unpublished opinion that barely makes it onto the fourth page, the court affirmed summary judgment without even reaching the Daubert issue. Brown v. Roche Laboratories, Inc., 2014 U.S. App. LEXIS 9946 (11th Cir. May 20, 2014). The plaintiff could not prove that the failure to warn physicians to test and substitute an alternative antibiotic for penicillin-sensitive patients was the proximate cause of the plaintiff’s skin condition. Under Georgia law, “if a manufacturer of a prescription drug warns a patient’s physician of any risk or hazards of the drug and, despite the known risk of harm, the physician administers the drug, the manufacturer is insulated from liability for injuries by the patient.” The doctor who prescribed the medicine testified that he knew the plaintiff was sensitive to penicillin and that there was a possible cross-reactivity, yet he went ahead with the prescription. That “reasoned decision … severed any causal link between the alleged ineffectiveness of the warning label” and the alleged injury.
Perhaps we have already been too loquacious in rendering this sound, straightforward result. Sometimes it is hard to resist the impulse to be a singer of tales. And we will let that stand as the first clue about where this writer will be on vacation by the time you read this – just in case anybody wants to play the game of Where in the World is Stevie Mac. Further hint: think of a country a long ways away and with a pretty long coastline. Further further hint: think of a country that wasn’t a country when Bush 41 was in office.