Photo of Rachel B. Weil

This past weekend, we paid a return visit to Cleveland, the home of our best law school friend, who braved the (figurative) waters of New Haven with us so many years ago.  In deference to the Drug and Device Law Traveling Companion, we visited the Pro Football Hall of Fame.  In contrast to the stunning rotunda of our beloved Country Music Hall of Fame, the Football Hall stacks all of the inductees’ busts against a single wall – sort of a warehouse of disembodied heads.  We felt like we were in the parts department of Dr. Frankenstein’s laboratory.  But we enjoyed the visit and paid fond homage to the bust of Tommy McDonald.  We also visited the Rock and Roll Hall of Fame, which we had seen before and which we continue to find both impressive and tons of fun.  This time, we lingered at the “One-Hit Wonders” display, commemorating so many recording artists who disappeared after just a bit of noise, never to be heard from again.

The plaintiff in today’s case followed the same trajectory, albeit after his apparently meritless case languished on an MDL docket for eight years.  In Wilhelm v. Pfizer, Inc. 2016 U.S. Dist. LEXIS 127269 (D. Nev. Sept. 19, 2016), the complaint was originally filed in 2006 in the District of Nevada by fourteen plaintiffs alleging that the defendant’s product caused suicidal ideations.  The JPML transferred the case to the Neurontin MDL after it was filed, and remanded it back to the transferor court in July 2013 with three plaintiffs remaining.   One month later, the court permitted counsel for these plaintiffs to withdraw.  Two of the plaintiffs dropped out, leaving a single plaintiff, proceeding pro se. In February 2014, the defendant moved for summary judgment, arguing that the plaintiff could not produce any expert evidence proving that the defendant’s product caused his injuries.  The plaintiff filed for Chapter 7 bankruptcy in June 2014.  He never disclosed his product liability lawsuit in the course of his bankruptcy proceedings.

In January 2016, the court finally held a hearing on the defendant’s 2014 motion for summary judgment. After the hearing, the plaintiff filed a motion for summary judgment attaching a doctor’s letter, dated after the January hearing on the defendant’s motion and “years after discovery closed and the dispositive motion deadline had passed,” Wilhelm, 2016 U. S. Dist. LEXIS 127269 at *11, stating that the defendant’s product caused the plaintiff’s injuries.

As an initial matter, the court explained that expert testimony is required under Montana law “when the issue presented is sufficiently beyond the common experience of the trier of fact and the expert testimony will assist the trier of fact in determining the issue or understanding the evidence.” Id. at *9 (citations omitted).    Because the plaintiff’s claims involved “complex factual question[s] . . . [especially because the plaintiff] was taking multiple medications over a long period of time and appear[ed] to have a family history” of mental health issues, the court held that expert testimony was required to establish causation as to all of the plaintiff’s claims. Id. at *10.  To the extent that the letter attached to the plaintiff’s motion constituted such expert testimony, the court held “that Plaintiff’s disclosure of [the doctor’s] report [was] untimely and highly prejudicial to the Defendant.”  Because the plaintiff had not disclosed the expert’s identity and had had not provided the report to the defendant, the defendant had “no subsequent opportunity to offer its own expert testimony, conduct a deposition of [the doctor], or otherwise meaningfully rebut Plaintiff’s evidence before it filed its motion for summary judgment, or in response to Plaintiff’s motion, given that discovery had long since closed.” Id. at *12.  Because the plaintiff had not adduced evidence creating a genuine issue of material fact as to whether the defendant’s product caused his injuries, the court granted summary judgment in favor of the defendant.

As if this were not enough, the court also found that the plaintiff was “estopped from pursuing the action further, because of his failure to disclose [the] lawsuit in his bankruptcy proceeding,” explaining that, under the Federal Rules of Bankruptcy and the cases construing them, “[f]ailure to list an asset or interest on the bankruptcy schedules causes the debtor to be judicially estopped from pursuing a claim to recover that interest after discharge.” Id. at *13 (citations omitted).

Doctors have the Hippocratic Oath – “First, do no harm.”   For litigants, the analog goes something like, “First, follow the Rules.”  Otherwise, like the plaintiff in Wilhelm (and like rock music’s one-hit wonders), you may soon be little more than a memory.