Photo of Stephen McConnell

The time for Mad Men is almost over.  Next Sunday is the finale, and we can hardly stand the thought that our tv screens will no longer harbor Don Draper, his predatory, boozing advertising colleagues, his aggrieved family, and all those random acquaintances who either wanted to love Don or beat him about the head with a telephone book.  There has been a lot of speculation about how the show will end.  Chief among the theories is that, consistent with the opening titles imagery of a man falling, Don will exit through a skyscraper window.  A crazier notion is that Don will end his latest On the Road odyssey by becoming the notorious 1971 hijacker DB Cooper.  But as the great tv critic Alan Sepinwall pointed out, when the last notes of the title song fade, Don ends up safely in a chair, with the inevitable cigarette tucked in his right hand.

A couple of weeks ago the episode was called “Time and Life.”  The ad agency had been gobbled up by a much bigger agency, and was being forced to move out of its offices in the Time/Life building.  “Time and Life” sounded suspiciously to our ears like Martin Heidegger’s Sein und Zeit (Being and Time), a big, forbidding book that birthed existentialism.  When Heidegger wasn’t busy canoodling with Hannah Arendt or cheerleading for the Nazi party, he wrote perhaps the preeminent work of 20th Century philosophy.  He said that we are thrown into the world, are baffled by our existence and its impending end, and struggle for authenticity under the vast indifference of the skies.  If there is anything about Sartre that you thought was insightful or cool, odds are that he cribbed it from Heidegger.  Anyway, Heidegger had a phrase for people who departed from authenticity.  The English translation for the original German word is “falling.”

But any connection with our junior year class on The Political Philosophy of Marx, Nietzsche, and Heidegger (the class was taught by
Harvey C. Mansfield, and he ended up concluding that those three German philosophers were brilliant but wrong and, worse, irresponsible, because their writings supported the most murderous regimes of our time) is not why Mad Men matters so much to us.  More than any other of the ‘difficult men’ shows of the current Golden Age of TV, Mad Men is relevant to more than our jiggling neurons.  We don’t kill people or cook meth, so The Sopranos and Breaking Bad seem diversionary by comparison.  Mad Men is about things we do do:  persuade people, muck up personal relationships, and drink whisky on school nights.  Moreover, because of its 1959-70 setting, Mad Men feels like a conversation with our parents that we were never able to have.  They had lived through the depression and then found themselves in the midst of a nutty American hegemony that could be easy, cruel, fun, and wildly unfair all at the same time. There was a lot to admire about that generation and a lot to make you shake your head in fury.  But one way or another, they were ours.  Maybe Mad Men will end by taking a stab at the same questions that drove so much of the action in The Sopranos and Breaking Bad:  Can people learn?  Can they change? In The Sopranos, it seemed that Tony Soprano never really could change, no matter how much he could goofily appropriate the language of psychology.  In Breaking Bad, Walter White certainly did change.  The creator of Breaking Bad, Vince Gilligan, famously described the arc of the show as taking Mr. Chips and turning him into Scarface.  People can get worse. Perhaps on Sunday Don Draper will emulate the original Odyssey by finally going home and doing right by his family.  That would be something of a surprise, since the creator of Mad Men, and the writer and director of the finale, Matt Weiner, wrote some of the darker episodes of The Sopranos.

But even writers learn and change.  The title of the Mad Men finale is “Person to Person.” That title incites optimism in our scurvy soul.  We bet Weiner and Don stick the landing.


Today’s case is a straightforward one with a good result, and there is some learning to be had from it.  It is about one issue that we love to discuss, preemption, and one that we do not say so much about, statute of limitations, because that issue is usually so fact-specific. The case is called Williams v. Ciba Vision Corp., 2015 WL 1903429 (S.D. Mississippi April 27, 2015).  The plaintiff received a replacement lens during cataract surgery in 1999. Over the next couple of years, the plaintiff experienced problems with the lens, including infections, pain, and an inability to see.  But it was not until 2012 that the pain became so severe that the plaintiff underwent an extraction of the lens.  Testing on the lens confirmed the existence of a foreign substance.  The plaintiff filed suit in 2013 and alleged that the defendant deviated from an FDA-approved manufacturing process and thereby permitted biofilm formation on a majority of lenses.

Did we mention that the lens in question was a class III medical device that had gone through the Pre-Market Approval (PMA) process?  That means that the claims are preempted … unless the plaintiff could thread the needle and establish the dreaded “parallel claim” by showing that the defendant’s manufacturing process (1) violated the Food Drug and Cosmetic Act (FDCA), and (2) would give rise to recovery under state law even in the absence of the FDCA.  The plaintiff also lobbed in claims that the defendant failed to warn doctors of possible adverse effects from the manufacturing process, failed to conduct adequate testing of the new manufacturing process, etc., but the court correctly viewed all those claims as hinging on the assertion that the manufacturing process deviated from FDA specs.  Now we are at the point where different courts apply the parallel claim doctrine differently.  Bad courts accept generalized, formulaic allegations and wave the case on to the discovery phase.  Good courts look for facts rather than vague incantations.  The Williams court was a good court.  In Williams, the plaintiff offered only vague, conclusory allegations that the defendant’s manufacturing process deviated from FDA requirements.  That was not enough.  The Williams court distinguished away a pesky Fifth Circuit decision called Bass largely on the grounds that in Bass the FDA had warned the defendant of manufacturing problems. (We discussed the Bass decision here.)  By contrast, there was no such FDA warning in Williams.  Rather, the defendant in Williams had undertaken a voluntary recall.  Whether Williams should alert possible defendants to the virtue of voluntary recalls or alert defense counsel to the doctrinal significance of voluntary recalls is hard to say, but there is something to learn there.  (Wouldn’t it be nice if we had a comprehensive, witty blogpost about recalls?  Wait, a minute – we do.) Perhaps plaintiffs could learn the futility of pleading parallel claims without specific facts, but we predict that such learning is utterly beyond the ken of our colleagues across the v.

The court in Williams announced a separate, independent basis for dismissing the case: it had been filed well past the statute of limitations period.  Under Mississippi law, negligence and strict liability claims must be filed within three years and warranty claims must be filed within six years.  The plaintiff in Williams had waited far longer than that.  As you might expect, the plaintiff sought to avail herself of the discovery rule, which would mean that the clock would not start until she had discovered the injury.  Remember that the plaintiff started experiencing problems – and real ones, not mere trivialities – early on. The complaint itself reflected “chronic ongoing medical complaints which began almost immediately following the implantation of Plaintiff’s replacement lens in her left eye during cataract surgery in 1999.”  The discovery rule applies to latent injuries – ones that lay hidden for a while.  There was nothing latent about the problems with the replacement lens in this case. It is true that the injuries became worse.  But Mississippi, like most states, follows a rule that a tortious act gives rise to a single cause of action.   If each gradation of injury starts the clock anew, the statute of limitations would become a dead letter.  The plaintiff then argued something that we have started to see in more and more cases:  that the clock did not start until she had a medical opinion that the replacement lens caused her eye problems.  Nice try.  But the discovery rule refers to discovery that you have an injury, not discovery that you have a case, much less that you have a winning case:  “neither absolute certainty nor an expert opinion is required for a plaintiff to assert a cause of action under Mississippi’s products liability statute.”

As we said, we have lately been seeing a lot of attempts by plaintiff counsel to string out the statute of limitations.  Some have even contended that the clock does not start until a lawyer or expert witness blesses the case.  (It’s like a reverse Lone Pine doctrine!)  The Williams case reads Mississippi law, but most of the controlling concepts reside in the law of virtually all jurisdictions.   There is a lot to learn from the clarity of the Williams decision.

We were able to learn of the Williams decision because Eric Lasker of Hollingsworth LLP brought it to our attention.  For that reason, as well as our long-time hatred of the New York Rangers, we will root alongside Eric and, no doubt, everyone at Hollingworth LLP (Joe probably puts dissenters in the firm penalty box), for the Caps in tonight’s game 7.