Photo of Bexis

What follows is a guest post from Mark Herrmann, the co-founder and former co-host of this blog.  While he hasn’t litigated since going in house, he still writes on legal topics, including drug and medical device product liability.  This post is also something of a shameless plug, since he’s announcing the latest edition of his treatise on the subject.  But we’ll forgive that, because he’s Mark Herrmann and still funny as all get out to read.  As always, guest posters (even if former bloggers) are totally responsible for their posts, entitled to all the credit (and any blame) for their posts.


I’m back from the dead again.

(The last guy to pull that off did it only once.)

I co-founded and co-hosted this blog from 2006 until the end of 2009, when I left private practice (and the defense of pharmaceutical product liability claims) to take a job as the head of litigation at Aon, the big insurance brokerage.  I’ve reappeared in the drug and device space only once since then  — in 2011, to write a book review that compared the first edition of my then-recently-published Drug and Device Product Liability Litigation Strategy to the umpteenth edition of Bexis’s Drug and Medical Device Product Liability Litigation Deskbook.  (Yeah, yeah:  Is it really fair to let the author of a book review his own work?  Well, nobody ever accused Bexis and me of being fair.  And besides, we figured we were doing a public service by letting the drug and device world know about the existence of the two books, even if the world slightly discounted my opinion of my own work.)

Anyway, the second edition of Drug and Device Product Liability Litigation Strategy has now been released (here at Oxford University Press, the publisher; here at Amazon).  And if I’m foolish enough to update that book even though my life no longer touches the drug and device space, then I’m sure as heck going to “review” that second edition here.

(To say that I updated the book is a bit of an overstatement.  I owe a debt of gratitude to my co-authors, Dave Alden of Jones Day, and Geoff Drake of King & Spalding, who manned the laboring oar.  And Bexis probably owes some gratitude to Tony Vale of Pepper Hamilton, who’s his co-author.)

Let me start by saying, as I have said elsewhere, that this subject is important (even apart from the fact that I wrote the book).  Pharmaceutical product liability cases, which, in federal court, disproportionately end up in MDLs, are a huge percentage of the federal docket:  “Cases in multidistrict litigation proceedings constituted 36 percent of the federal case load in 2014, which is more than double the percentage they constituted in 2002. Not only that: ‘Removing 70,328 prisoner and social security cases from the total, cases that typically (though not always) require relatively little time of Article III judges, the 120,449 pending actions in MDLs represented 45.6% of the pending civil cases as of June 2014.’ Read that again: 45.6 percent of all pending federal civil cases. And virtually all of those cases are in pharmaceutical and health-care product liability MDLs.”

If we’re talking about a huge percentage of all pending federal cases, then we should take this subject very, very seriously — both as a matter of public policy and as a matter of business development.

Someone should write a book about it.

Wait!  Someone did!

In fact, two guys did.

So how does the second edition of Herrmann compare to the umpteenth edition of Bexis?

The differences remain.  Herrmann aims to be illustrative and practical.  Thus, for example, Herrmann identifies the issue of innovator (versus generic) manufacturer liability, notes a key development or two (such as the Alabama legislature overturning what the Alabama Supreme Court had said about the issue), and moves on.

That would never satisfy Bexis.  He notes the issue, cites most of the cases that discuss it, beats the issue to a bloody pulp, and then hammers the corpse.

If you’d like a book that identifies the major issues, cites a couple of leading cases, and moves on, go with Herrmann.  It’ll do the trick.

But if you want a book that starts your research, finishes your research, and then tells you what your research should be next year, go with Bexis.  He’s unstoppable.

(I bet the Herrmann book gets a couple more casual readers than the Bexis book, but the Bexis book pulls more law firm associates’ chestnuts out of the fire.  It’s a matter of what you’re after.)

A couple of related things:  Herrmann updates his book (very) periodically.  The first edition came out in 2011; the second in 2018; the third will appear when he regains his energy.  Bexis updates his book annually.  That both explains why it can be more comprehensive — Bexis’s book is meant to stay up to date — and explains the price tags:  Your firm shells out only a couple of hundred bucks for Herrmann’s 400-page opus; Bexis’s 1000-page ditty runs the firm 700 bucks. (Bexis updates a 1000-page book every year?  No wonder he looks so tired.)

The fact that Herrmann’s book emphasizes the practical shows up in other ways.  Herrmann’s book contains long chapters on picking juries and trying drug cases; Bexis’s book touches on those subjects, but devotes less time to them.

And the books also show the topics that Herrmann and Bexis always gravitated to:  Herrmann was a student (of sorts) of the MDL Panel.  It’s no surprise that his book spends a few extra pages talking about the Panel and some space analyzing issues that arise in MDL practice.

Bexis, on the other hand, is fascinated by everything.  So no one is going to top, for example, his exegesis of negligence per se or punitive damages claims in the context of drug cases.

It’s also striking that the two books are quite different from each other.  Herrmann could, after all, look to Bexis’s book to beef up his footnotes; Bexis could borrow some MDL analysis to include in his book.  But we didn’t; we play fair.

Which book should you buy?

It depends what you’re after.

Or buy ’em both:  That will make your library complete, and you’re spending other people’s money anyway.

I’m heading back to the crypt now.  It’s way too sunny out here.  Maybe I’ll see you again to celebrate the publication of the third edition of my book.

‘til then . . . .