Today is the day when we will learn whether the Governor of Louisiana will enter the 2016 presidential race. That reminds us of Louisiana’s rather colorful collection of politicians, including Huey Long and Edwin Edwards. You probably already know that Louisiana boasts an unrivaled array of colorful characters in every field of endeavor, from chefs (Emeril Lagasse, Paul Prudhomme), sports (Peyton Manning, Pistol Pete Maravich), music (Louis Armstrong, Dr. John – and about a million others), and philosophy (Huey Newton, Uncle Si). Louisiana has added its own spicy flavor to the law, as well. If you asked drug and device defense lawyers who is the single most flamboyant, unpredictable plaintiff lawyer in the land, we bet a certain lawyer from Louisiana would garner the most votes. Pelican State courts have also given us some of the highest highs and lowest lows in product liability litigation.
Examples of both such highs and such lows reside in the recent case of Ezeb v. Sandoz Pharmaceuticals, No. 2015-C-0204 (Ct. App, 4th Cir. La June 17, 2015). What we have in the Ezeb case is one of the very worst summary judgment rulings by a court we have ever seen, ultimately reversed by an eminently sensible appellate court decision. Usually when we talk about a bad summary judgment decision, we are bemoaning a court’s failure to grant some virtuous defendant a ruling that dismisses some ill-conceived case. But in Ezeb the trial court granted partial summary judgment to a plaintiff on grounds so wrong-headed as to beggar belief.
While we supply the requisite procedural background, you might want to supply appropriate background music by a Louisiana legend – perhaps the smooth stylings of Harry Connick, Jr., Geno Delafose, or Lil Wayne. In or about 1990, the plaintiff filed a lawsuit against numerous doctors, hospitals, and pharmaceutical companies claiming that they played a role in overdosing him with a drug and thereby causing him various injuries. He sued the medical professionals for negligence, and sued the drug manufacturer under the Louisiana Products Liability Act (LPLA) for failing to warn of the side effects of the medication. One of the defendants was Caremark, the company that employed a treating nurse at the medical center where the plaintiff was administered the medicine. The plaintiff had alleged that the nurse played some role in the overdose. In 2008 (so now we are 18 years after the case was initiated), Caremark filed a motion for summary judgment. Reading between the lines of the decision, it appears that Caremark argued that there was no evidence establishing that its nurse was responsible for the dosing decision. Caremark’s summary judgment motion was unopposed, and the court, not surprisingly, granted the motion. All of the plaintiff’s claims against Caremark were dismissed with prejudice.
On December 4, 2014 (so now we are 24 years after the case was filed – can that possibly be right?!), the plaintiff filed a motion for partial summary judgment against the drug manufacturer. The plaintiff argued that the trial court’s dismissal of the claims against Caremark was the law of the case and constituted a finding that that the drug manufacturer was responsible for goading the treating physician into prescribing a dose that was too high. Amazingly, the trial court held that the law of the case doctrine applied and granted the plaintiff’s motion for partial summary judgment. Wow. We will readily agree that Louisiana probably has the best food in the republic, but this ruling smells like a kind of home cooking that we could not stomach.
What is “law of the case”? We generally think of it as encapsulating the principle that when an appellate court has passed on a legal question and remanded the case for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same. That clearly is not what happened in Ezeb, so what gives? Sometimes we hear the phrase “law of the case” applied in the sense that once the trial court has ruled on a certain specific issue between certain specific parties, that ruling must be followed. If only that were true! In every trial we have ever had, every morning we were greeted by plaintiff lawyers badgering the judge to revisit rulings of the prior day that had inconvenienced the plaintiff lawyers by, for example, excluding prejudicial, irrelevant evidence. Even accepting a loosened definition of law of the case that
would apply to a lower court’s earlier summary judgment ruling, that earlier ruling must involve precisely the same issue and precisely the same parties. Nothing like that happened in the Ezeb case. When Caremark moved for summary judgment, it merely needed to establish that the plaintiff could not prove its case against Caremark, and that no rational jury could find against Caremark. As a defendant moving for summary judgment, Caremark did not need to prove anything at all. It certainly did not need to prove that some other defendant was responsible for the dosing decision, and it did not prove that. Moreover, the decision granting summary judgment in favor of Caremark simply did not involve the manufacturer at all. The manufacturer remained gloriously mute. It filed no papers – no one did, actually. Accordingly, applying that earlier ruling against the manufacturer smacks of fundamental unfairness. The manufacturer was never heard on the issue. And it was not even the same issue.
There is also a practical dimension to the trial court’s over-broad application of law of the case. If the trial court’s approach held sway, then every defendant would have to think long and hard about filing its own position paper on every motion brought by other defendants, even when such motions do not on their face implicate anyone else’s rights or interests. Does anyone really want that? That framework would greatly add to the tons of paper resting in case files and would tax the time of judges and clerks. It would add to the expense of all litigants. It would also (and maybe this is something that plaintiff lawyers would find appetizing) introduce tensions in the codefendant relationship. In most drug and device cases the defendants try to get along. Manufacturers seldom blame the doctors and doctors seldom blame the manufacturer. When someone breaches this typical truce, things get messy and plaintiffs sit back and delight in the internecine strife. As defense lawyers, we are happy to point the finger at the empty chair, but when the chair is filled we tend to stick to defending our client and not diming out anyone else. But if we now are charged with the obligation of scanning every motion in the case to see if some penumbra of every possible ruling might harm our client’s interest, then we will encounter something we never thought possible: an American litigation system even more complicated and clunky than what we already have.
Thus, the Louisiana appellate court did the right thing in reversing the partial summary judgment granted in favor of the plaintiff. The appellate court understood that the purpose of the law of the case doctrine is “to avoid relitigation.” That purpose was not served here, because the trial court had not previously ruled upon the manufacturer’s “acts under the LPLA.” The plaintiff had “failed to establish a prima facie case by relying on the facts established in the Caremark case.” Further, the plaintiff failed to offer any evidence with his motion for partial summary judgment that the manufacturer had failed to warn medical professionals and consumers of any dangers of the drug – which was, after all, what the claim was supposed to about.
In addition to the majority opinion, there is a very helpful concurring opinion by Judge Landrieu. The concurrence points out that the trial court’s judgment “lacks the necessary decretal language.” We are not sure whether “decretal” is a Louisiana term of art. Our ancient Black’s Law Dictionary (5th ed. 1979) defines “decretal order” as a “preliminary order that determines no question upon the merits and establishes no right.” Hmmm. A grant of summary judgment does seem to address merits and rights. Black’s Dictionary also tells us that “decretals” were letters of the pope determining points of ecclesiastical law. Double hmmm. Either way, we are grateful to the concurrence for pointing out that the trial court had supplied virtually no explanation to justify the vast over-application of law of the case, and we are always pleased to learn a new word. The concurrence also lays out the issues and the necessary conclusion quite nicely: “Caremark’s motion, however, involved different parties – Caremark and the plaintiff – under a different theory of liability –
negligence as opposed to liability under LPLA. Findings in granting Caremark’s motion other than to find that there were no material issues of fact in dispute
as to Caremark’s liability. There is nothing in Caremark’s 2008 motion for summary judgment that establishes Novartis’ duty under the LPLA, and the trial court made no such finding.”
The mystery writer James Lee Burke has spent a great deal of time in Louisiana and has described it as a “fresh air mental asylum.” At least for a moment, in the Ezeb appellate decision, that description is not quite applicable.