2014

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In 2012, the Third Circuit considered whether companies who provide insurance under Medicare Part C, known as Medicare Advance Organizations (“MAOs”), can seek reimbursement of medical expenses from pharmaceutical companies who settled with their insureds on litigation claims related to use of the pharmaceutical company’s drug.  That’s a mouthful, but essentially the question was whether MAOs can create a whole other litigation related to a mass tort in which they seek reimbursement for covering the mass-tort plaintiffs’ injuries. The answer from the Third Circuit was that they can.  See In re Avandia Marketing, Sales Practices and Products Liability Litig., 685 F.3d 353 (3d Cir. 2012).  Not great. But then last month the district court in that same case considered whether those MAOs do this in a class action. If so, that could foster a lot of this litigation.  This time, however, the answer was no.  See In re Avandia Marketing, Sales Practices and Products Liability Litig., 2014 U.S. Dist. LEXIS 164510 (Nov. 24, 2014 E.D. Pa.).  And given the factual background of this case, that answer is no surprise.

The underlying litigation was the Avandia mass tort.  GlaxoSmithKline, the manufacturer, settled with thousands of plaintiffs and thereby became obligated under Medicare law to reimburse certain MAOs that had initially paid the medical costs of plaintiffs.  That resulted, when applicable, in a lien on the settlement funds by MAOs.  GSK set aside a percentage of the settlement funds to account for those liens.  Id. at *14.  GSK also agreed with many MAOs to enter into Private Lien Resolution Programs (“PLRPs”), which satisfied the MAO liens.  Id. at *14.  GSK did this with 56 MAOs, which covered the vast majority of Avandia plaintiffs.  Id. at *5.  It sought to enter into PLRPs with other MAOs, but had not done so with 94 others at the time the court was considering plaintiffs’ class certification motion.  These other 94 MAOs covered only a small share of the Avandia plaintiffs.  Id.  There was some evidence that many, not all, of those MAOs were not interested in PLRPs or collecting on liens.Continue Reading Federal District Court in Pennsylvania Denies Class Treatment of Medicare Claims against Pharmaceutical Company That Settled Mass Tort Claims

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This morning the United States Supreme Court decided Dart Cherokee Basin Operating Co. v. Owens, No. 13-719, slip op. (U.S. Dec. 15, 2014), holding that removal under the Class Action Fairness Act (“CAFA”) requires no evidentiary submission regarding the amount in controversy beyond that alleged in the notice of removal.  The statute “tracks” Fed.…

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We (in the peculiarly singular sense) last posted on the day after Thanksgiving, a day sometimes referred to as Black Friday because of the number of retailers that offer purportedly discounted prices to lure eager holiday shoppers.  We have discussed before how the moniker seems more appropriate for other historic events.  It was probably apparent from that post that shopping, particularly at brick-and-mortar stores, is not our favorite thing to do.  We do know, however, that others can be drawn to certain, packed locations by the lure of a good deal.  So too—seamless transition, huh?—can plaintiffs flock to jurisdictions where their lawyers expect a good deal from judges and juries.  Assuming subject matter and personal jurisdiction exists, an assumption we think may be less likely to be foregone in the future, the plaintiff generally gets to pick where the defendant will have to show up to see what kind of deal it can get.

Once jurisdiction exists, there are two vehicles for a defendant to move a case.  The first often has less utility—a motion to transfer to another court within the same state (or to a different federal court when the case is in federal court, which plaintiffs generally try to avoid in the first place).  Consolidation of cases involving the same product through the application of aggregation procedures limits the availability of motions to transfer, but transferring from one court in a state in which the big drug or device manufacturer does not want to be to another court in the same state may not improve the deal much.

The second vehicle is to claim that the forum, typically meaning anywhere in the state where sued, is an inconvenient one for the defendant and the case.  There is some basic appeal for the plaintiff’s response to a forum non conveniens motion lodged by a defendant sued in its own state—how can it be inconvenient for you to be sued in your own state?  Because many drug and device manufacturers are based in, or have subsidiaries that are based in, New Jersey, and because one of the mass tort judges in New Jersey was generally thought to be somewhat inclined to one side of the v., Atlantic County, New Jersey, became a favorite destination for litigation tourists.Continue Reading Inconvenient (Forum) Shopping in New Jersey

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We were first on the web with the news that the Pennsylvania Supreme Court had overruled Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), in Tincher v. Omni Flex, Inc., ___ A.3d ___, 2014 WL 6474923 (Pa. Nov. 19, 2014).  We were also first on the web with a detailed analysis of what the Court did, and did not do, in Tincher – within 24-hours of the 137-page decision becoming available.

That’s all well and good.  We hope we saved at least some of our readers the hassle of having to drop everything and read/noodle over the lengthy opinion.  Now, you can do so in an orderly fashion.  But being out there “fustest with the mostest” also made us something of a lightning rod when the other side of the “v.” decided that they were going to try to spin Tincher as some sort of “win.”

Tincher a win for the plaintiffs?  That’s frankly absurd.  They remind us of Bagdad Bob – claiming that Saddam Hussein “won” the first Gulf War because he didn’t lose it as badly as he did the second Gulf War.  Just avoiding a total wipeout isn’t a “win.”  General Lee did not “win” at Gettysburg because he was able to get away after the battle (although President Lincoln did cashier General Meade for letting that happen).  Sure, Bexis would have liked the Third Restatement better.  As an amicus, it’s his job to go for the home run, and sometimes he gets it, but smacking the ball off the wall still counts as an extra base hit.Continue Reading Tincher – The Spears and Arrows of Outrageous Spinning

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Walking out of the Constitutional Convention on its final day, back in 1789, Benjamin Franklin was (supposedly) asked what kind of government he had helped create for the new entity to be known as the “United States of America.”  He replied, “A republic – if you can keep it.”

We find ourselves with a similar feeling regarding the amendments to the federal discovery rules that we’ve blogged about previously.  Whatever else anyone, on either side of the “v.,” might think of last month’s election result, the Republican capture of the Senate ended the last realistic prospect of derailing those amendments – which have passed every level of the judicial committee structure unanimously and now rest with the Supreme Court.  Among other things, these amendments enshrine the requirement that discovery be “proportional to the needs of the case” squarely in Rule 26(b)(1)’s definition of the scope of discovery, intentionally emphasizing a concept previously buried deep within Rule 26.  They should be in effect by December, 2015.

The other side hates it.  They lost, badly, on these amendments, but don’t expect them to give up.  Defense counsel need to anticipate where plaintiffs will try to go next – which is to try to make the proportionality requirement so costly and impractical that everyone, judges and defendants both, gives up on proportionality as a meaningful restriction on discovery.  That approach would be a direct violation of the intent of both the purposes of the proportionality requirement itself and of Rule 1 (which is also being amended), but are you really surprised by that?Continue Reading Proportionality – If You Can Keep It

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This post is from the non-Reed Smith side of the blog.

We’ve reported on multiple sets of in limine and summary judgment rulings coming out of the Pelvic Mesh MDLs (see here, here, here and here for example).  And there is a new batch just in.  Like the other rulings coming out of this litigation, they are a mixed bag.  As is our usual procedure, we are going to primarily focus on the positive and we’ll skip over a lot of the redundant and more mundane rulings.  It should make for a short, but hopefully informative post.

All of the rulings were entered in Bellew v. Ethicon, Inc., No. 2:13-cv-22473 (S.D. W. Va.), a bellwether case in the Ethicon Pelvic Mesh MDL.  We’ll start with the in limine rulings which can be found at Bellew, 2014 U.S. Dist. LEXIS 165709.  Many of the motions were standard – by defendant to exclude evidence of other allegedly bad acts (denied without prejudice); by plaintiff to exclude evidence of other allegedly good acts (denied in part (granted only as to things defendant agreed they would not introduce at trial)); by defendant to exclude that it no longer sells the product at issue (granted); by plaintiff to exclude evidence of 510k clearance (granted).

There was one motion in limine, however, that caught our attention as one we see more commonly brought by defendants.  Although, this issue can cut both ways, so we aren’t going to offer much commentary here.  Plaintiff moved to exclude “opinion testimony from treating physicians.”  Id. at *24.  The reason this is more often a defense motion is the unlevel playing field we’ve railed against for years.  Plaintiffs have unfettered, ex parte access to the treaters.  So, they often use that time to show the doctor things like medical literature the doctor had never read, corporate documents the doctor would never have otherwise seen, or information that post-dates the doctor’s treatment of the plaintiff.   All of this is done in an attempt to secure opinion testimony on causation.  Now, if the treater is retained by plaintiff as an expert and prepares an expert report, his opinions, like those of any other properly disclosed expert, are scrutinized under Daubert.  The problem comes when plaintiff tries to proffer the causation opinion without the expert report.Continue Reading A Collection of Ethicon Mesh Rulings

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Last week, the Eighth Circuit put the final seal on Pliva’s victory in Brinkley v. Pfizer, Inc., 2014 U.S. App. LEXIS 22742 (8th Cir. Dec. 2., 2014), upholding the district court’s dismissal with prejudice under Mensing and Bartlett.  The case involved a doctor who prescribed Reglan and a pharmacist who, when filling the prescription, switched it out for Pliva’s generic metoclopramide.  Id. at *2.  While the Reglan label had been changed in 2004 to add a warning on long-term use, Pliva, plaintiff claimed, failed to make the corresponding update to its label.  So she pursued a failure to update claim.

In some sense, that’s a good starting point.  By styling her failure to warn claim as a “failure to update,” Plaintiff was conceding that she could not bring a standard failure to warn claim.”  Generic manufacturers can only change their label to match a corresponding change in the branded label, and plaintiff hoped that her “failure to update” claim would avoid Mensing preemption.

But this claim had problems too, and they centered on the learned intermediary doctrine.  Pliva’s duty to warn, if any, ran to plaintiff’s prescribing doctor.  But, as plaintiff alleged, her doctor prescribed Reglan, not Pliva’s generic metoclopramide.  Consistent with that, the doctor consulted the Reglan label, not the Pliva label.  Id. at 2-3.  In short, the doctor never read Pliva’s label.  So no matter what Pliva put there, it could not have affected the doctor’s decision to prescribe the drug to plaintiff.  We lawyers call that a failure of proximate causation.Continue Reading Learned Intermediary Doctrine Gets an Assist in Preempting a Failure to Update Claim

Photo of Steven Boranian

We read with great interest the Ninth Circuit’s recent opinion on CAFA “mass action” jurisdiction, Corber v. Xanodyne Pharmaceuticals, Inc., No. 13-56306, 2014 WL 6436154 (9th Cir. Nov. 18, 2014).  If you have not read it yet, you should.  We hesitate to call it a blockbuster, since we think the opinion’s reasoning is more narrow that it needed to be (more on that later).  But the result (holding that CAFA removal was proper) is clearly correct, and the opinion hopefully will become a stalwart against one of the more brazen abuses that we see in pharmaceutical litigation – the disingenuous joining of hundreds of unrelated plaintiffs in multiple complaints in a single jurisdiction, but with each complaint numbering fewer than 100 plaintiffs in order to avoid CAFA removal.

It is a form of “litigation tourism”—the mass importation of plaintiffs into jurisdictions that have no interest whatsoever in adjudicating their claims—and we have always wondered why courts tolerate it.  It has become a particular problem in California, whose underfunded courts are clogged as it is and whose taxpayers should not have to subsidize transient plaintiffs and the attorneys who represent them.

You won’t find this context in Corber, but trust us, it’s simmering there just beneath the surface.  Corber was one of multiple complaints filed in California state court alleging injuries in connection with the prescription drug propoxyphene.  The complaints together asserted the claims of hundreds of unrelated plaintiffs from all parts.  But rather than file one complaint for each plaintiff (which would have subjected the vast majority to removal under standard diversity jurisdiction) or file one consolidated complaint (which clearly would have been removable as a mass action under CAFA), the plaintiffs’ attorneys divided their clients into multiple mass complaints, with each complaint including at least one non-diverse plaintiff to defeat complete diversity and each numbering fewer than 100 plaintiffs.  To review, CAFA permits removal of “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.”  28 U.S.C. § 1332(d)(11)(B)(i).  So 100 is the somewhat-magic number that plaintiffs are careful to stay beneath, which these plaintiffs’ lawyers scrupulously did.Continue Reading The Ninth Circuit’s Must-Read Opinion on CAFA Jurisdiction

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This post is from the non-RS side of the blog only.

I didn’t know that the SPF value for sunscreens can reach higher than 100.  But they can.  As someone of Irish descent, someone who can burst into flames at the hint of sunlight like a John Carpenter vampire, I should have known that.  For instance, Coppertone markets a product called SPORT SPF 100+. I’m going to buy a case.

Now, some plaintiffs’ attorneys will tell me that I’m wasting my money.  Or, they might tell me that I have a lawsuit.

Or maybe I don’t.  Plaintiff Danika Gisvold brought a class action claiming that she paid an extra dollar for Coppertone SPORT SPF 100+ at Walmart, but it didn’t provide any more protection than Coppertone products with only an SPF value of 50 .  Gisvold v. Merck & Co., Inc., 2014 WL 6765718 (S.D.Cal.) (S.D. Cal. Nov. 25, 2014).  She thought she was getting double the protection, but she wasn’t.  She sued to get her dollar back and an order that Merck should issue a corrected label and corrective advertising.  Id. at *1.Continue Reading When More Is Neither Better Nor a Lawsuit

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It is a pity that the case discussed in today’s post did not come out around Halloween.  That is not to say that there is anything ghoulish about the invaluable service (keep that word “service” in mind) of making blood and body tissues available to patients in need.  We are more likely to perceive certain tactics of predatory plaintiff lawyers as ghoulish.  We are not saying that our opponents often resemble vampires or werewolves.  No.  We are not saying that.  Not out loud.

It has been a while since we have seen a case about a blood shield law – that is, a state law that immunizes providers of blood (and other body tissues) from strict liability.  In Palermo v. Lifelink Foundation, Inc., 2014 WL 6480524 (Mississippi Nov. 20, 2014), the Mississippi Supreme Court for the first time addressed the interplay between the state’s blood shield law and the strict liability provisions in the Mississippi Products Liability Act (MPLA).  The plaintiff alleged that he was injured by infected tissue surgically placed into this knee.  He argued that the strict liability and breach of warranty provisions of the MPLA trumped the blood shield law.  He lost.

The Mississippi Supreme Court’s opinion is extensive, but the reasoning is straightforward.  First, we are treated to a little history.  In May of 1966, the Mississippi Legislature passed the blood banking statute.   Here is the meat of it:

“[t]he procurement, processing, storage, distribution and or/use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing, transplanting the same or any of them into the human body for all purposes whatsoever is  the rendering of a service by every person participating therein, … and does not constitute a sale.”

Continue Reading There Will be Blood (Shield Laws)

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