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You’ve no doubt heard that hard cases make bad law. But sometimes hard cases make no law.  That is, the judge decides not to decide, because deciding seems too difficult.  We would have thought that ‘deciding stuff’ would have been way up there in the job description of judges, certainly above “managing litigation,” strong-arming settlements, and grousing about litigators who have the temerity to … litigate.  But not to decide is to decide.  For example, when a state court judge rules that she cannot determine whether a claim is preempted because preemption issues are too darn complicated, then she has essentially ruled that the claims are not preempted. She has also essentially lifted the curtain to commence the discovery festival and  extortion melodrama.  (That is not a hypothetical.  That happened.)

The facts in Heineman v. American Home Products Corp., 2014 U.S. Dist. LEXIS 124987 (D. Colorado Sept. 8, 2014), are passing strange, but they are no basis for the court to refuse to apply well-established law. The plaintiff alleged that her use of diet drugs in 1996-97 caused her to suffer from primary pulmonary hypertension (PPH), a very nasty disease.   The key legal theory was that the drug label failed to warn of PPH.  But the prescriber never read the label, and that fact should be enough to foreclose the claim. After all, a better warning would have made no difference.  So why did the court deny the defendant’s motion for summary judgment?

Not so fast.  First, let’s enjoy a brief interlude.  The Heineman case began as an exercise in litigation tourism.  It was initially filed in 2012 in the Philadelphia Court of Common Pleas.  We can see that court out our window.  It is in Philly’s City Hall, surely one of the two or three most handsome city halls in our republic.  We like the building and the people in it very much.  As much as we like our local court, plaintiff attorneys seem to like it even more.   They like it so much that they file cases there even when it is clearly the wrong court.  In Heineman, the defendant was able to remove the case to the Eastern District of Pennsylvania, where the diet drug MDL was pending.  Then the defendant was able to transfer venue of the case to the federal court in Colorado, on the fairly compelling grounds that the plaintiff and her doctors were all in Colorado, and that is where the injuries were sustained.

Now about those doctors.  The plaintiff had prevailed upon her physician parents, whom the court calls  “Dr. John” and “Dr. Joan,” to issue her a prescription for the diet drug.  When we see the name “Dr. John,” we think of the great New Orleans musician (“Right Place, Wrong Time,” “Such a Night,” etc.) and his unique ability to tease musicality out of nonsense words and phrases.  Some of that nonsense, but none of that musicality, creeps into the Heineman case.  It turns out that Dr. John signed the prescription for the diet drug.  To be more specific, Dr. John signed blank prescription forms, and Dr. Joan filled in the relevant information.   Dr. John testified that he did not review any warnings about the drug before prescribing it.  In fact, he had never heard of it.  This sort of thing probably happens more than we’d like.  As a real-life prescriber, Dr. John, worries us a bit.  But Dr. John is the perfect prescriber if you are a pharma defendant itching to get out of a case on the theory that there is no warning causation.

If Dr. John is the prescriber, then the plaintiff’s case is in real trouble.  But the plaintiff contended that Dr. Joan was truly the prescriber.  Unlike poor ignorant, non-reading dad, Dr. Joan testified that she had considered the allegedly incomplete warning information in the PDR before allowing her daughter to have the drug.  There was even some sliver of testimony that Dr. Joan might have written one or more prescriptions, but it was vague, uncertain, minimal evidence, and the court did not seem to consider it

The plaintiff argued that the defendant’s duty to warn ran not only to Dr. John as the physician technically prescribing the diet drug for the plaintiff, but also Dr. Joan, as the physician ostensibly “treating” the plaintiff and consulting with Dr. John on the suitability of the drug. That argument leans heavily on Hoffman v. Sterling Drug, Inc., 485 F.2d 132, 142 (3rd Cir. 1973), a case where the Third Circuit made an Erie guess that “Pennsylvania law would view it as insignificant whether the doctor is a prescribing or treating physician, the important consideration being that the warning best reach the patient.”  That guess was made in 1973.  In 1973 our favorite tv shows were “All in the Family” and “Room 222.”  The Godfather won Best Picture.  “Tie a Yellow Ribbon Round the Old Oak Tree” was the top song.  Nixon was still president, though in a private (later not-so-private) taped conversation he agreed that a “cancer” was growing on his presidency.

1973 was a long time ago.  Pennsylvania state court cases later made it clear that the Hoffman guess was a bad one. Pennsylvania, like pretty much every other jurisdiction, looks to see whether the prescriber’s decision was affected by the allegedly inadequate warning.

So the plaintiff’s failure to warn claims are toast, right?

Well …. the court finds the defendant’s argument to be “incomplete at this point, thus preventing the entry of summary judgment in its favor.”  2014 U.S. Dist. LEXIS 124987 at *15.    We are told that the defendant’s argument “elides the question of how the phrase ‘prescribing physician’ should be understood in the unusual factual scenario presented here.”  Id. at *16.  The court read the record as reflecting that “Dr. John did nothing more than sign a blank prescription form and turn it over to someone else, apparently abdicating any and all professional responsibilities that accompany the act of prescribing medicine.”  Id.  Maybe that makes Dr. John a bad prescriber, but it doesn’t make him not the prescriber.  How far now can we go behind the prescriber’s signature to pretend to find out what really animated the prescription decision?  In fact, the court admits that the defendant “may be correct that the question is answered slavishly, based solely on the signature on the bottom of the prescription, regardless of how that prescription came to be.”  Id.  “Slavishly” presumably means following a clear, black-letter rule.

The court punts.  There is no other word for it. Here is what the court says:  “The parties have failed to adequately address the means by which the court can identify this person (or perhaps persons) in the peculiar circumstances of this case.”  Id. at *19-20.   Maybe it’s a hard decision (we actually do not think it is – Dr. John signed the prescription, so he’s the prescriber) but it is still a decision by the court.  There is no genuinely disputed fact.  What more did the court need to know to be able to render its decision? Do we now always need a 360 degree inquiry into everyone who might have affected a prescriber’s decision?  Is the issue whether the prescriber actually made any decision?

Or is the issue that this court did not want to make a decision?