Over the past seven weeks we have been sports-starved. Back episodes of The Great British Baking Show do not quite make up for missing the start of baseball season and the NBA and NHL playoffs. But two things have ridden in to the rescue: (1) The Last Dance, the ESPN ten-part documentary about the 1997-98 championship run of Michael Jordan and the Chicago Bulls, and (2) the NFL draft. Maybe in the future we will have the time to talk more about the former. (Who are we kidding? We undoubtedly will have the time.)
Today, feeling inspired by the NFL draft, we will conduct a mock draft of our favorite Drug and Device Law topics. Like the NFL draft, a round in our draft consists of 32 selections. Like the NFL draft broadcast, we will occasionally offer highlights of the selection in the form of links to prior blogposts. Unlike the NFL draft, we will not be making our picks from a yacht (a la Cowboys owner Jerry Jones) or from a luxurious home that resembles the residence of the rich family in Parasite (a la Cardinals coach Kliff Kingsbury). Also, our draft lasts only one round. All other topics will be undrafted free agents. And there will be no tears.
Okay. We’re on the clock.
1. Personal jurisdiction. The first pick in this year’s NFL draft was LSU quarterback Joe Burrow. He had perhaps the greatest year a college quarterback ever had. But before that,he was not really on any team’s radar screen. Accordingly, with the first pick in this year’s DDL draft, we name personal jurisdiction, which lately has been a very powerful defense, after years of virtual irrelevance. Since the SCOTUS opinions in Bauman and BMS, personal jurisdiction has had a very good run. Now, you might challenge this pick, because getting out on lack of personal jurisdiction might not end the case. The plaintiff can sue you someplace else. But that often does not happen. That is because the plaintiff is hellbent on being in a hellhole jurisdiction. In any event, we should all think about personal jurisdiction first, because otherwise it might get waived. Here is one of our most recent posts on personal jurisdiction.
2. TwIqbal. Most football mavens said that Chase Young was the best player in the draft. The Washington football franchise picked him, which, for that team, was an uncharacteristically intelligent move. Young, an Ohio State defensive standout, is a generational talent. TwIqbal is also a game-changer. Let’s face it: plaintiffs often file complaints against our clients without any real factual basis. The complaints try to obscure that fact, but the SCOTUS Twombly and Iqbal decisions tell courts to test those complaints. It is amazing how often those complaints fail those tests. Check out this post for a recent example of TwIqbal flexing its muscles.
3. The Detroit Lions had the third pick in this year’s draft, and they chose shutdown cornerback Jeff Okudah. In this spot, we are choosing the ultimate shutdown defense, preemption. Hardly a week goes by when we don’t author a post or two on preemption. Here’s a recent example. We love preemption. We love preemption almost as much as we love football. If only there were more courts that shared our love.
4. Alternate medical causation. The Giants held the fourth pick. Unlike the last two drafts, the Giants reverted to form with an unglamorous, solid pick of an offensive lineman. We will do likewise, picking the ultra-solid, but sort of boring defense of alternate medical causation. You probably won’t get summary judgment by arguing alternate medical causation, but you might win the trial that way.
5. No safer alternative. The Miami Dolphins threw a long bomb in choosing Tua Tagovailoa. Sure, he suffered a horrifying injury last Fall, but the Dolphins simply did not see any other quarterback as a viable alternative. So, admittedly pushing the analogy past the breaking point, we here alight upon the defense that the plaintiff’s design defect claim is wrecked (maybe – it depends upon the applicable state law) for lack of a safer alternative. Here is one of our discussions of this defense.
6. Snap removal. No one picks a long snapper in the first round. But you have to move fast to pull off a snap removal. You must remove the case to federal court before the plaintiff serves the complaint on the in-state defendant. Plaintiffs really hate this maneuver, but the plain words of section 1441(b)(2) support it. The law on snap removal seems to be moving in favor of it, and in favor of defendants. Follow that nice trend here.
7. Comment k. The defense for unavoidably unsafe products reaches back to the classic era of tort law. It protects prescription drug products from design defect claims. Shouldn’t it also protect prescription medical devices? We think so, and we said so here.
8. Daubert. We thought the Arizona Cardinals got the best value of any NFL first round pick this year when they grabbed Isaiah Simmons, a do-everything defensive stopper from Clemson. Daubert can also be a defensive stopper. Yes, the process of scrutinizing expert methodologies demands a lot of work from lawyers and judges, but if it keeps junk science out of the courtroom isn’t it worthwhile? We write about Daubert constantly – here, for example. You might even call us experts on the subject.
9. Bankruptcy. Always check to see if your plaintiff declared bankruptcy. If so, then check to see if that plaintiff listed your tort lawsuit as an asset. Usually the answer is no, and you might be able to interpose a defense of bankruptcy fraud. That might make he the case go away, or at least make it slower and less appetizing. See here, for example.
10. Learned Intermediary. This might be an example of a gem slipping down surprisingly far. We knock out lots of failure to warn cases on the ground that the prescribing physician never testified that a different warning would have made any difference. If you randomly picked one of our posts, odds are decent that you’d find a discussion of the learned intermediary doctrine. Or you could just look here.
11. MDL case management – proof of use/injury. The Jets have had a history of making laughably bad draft picks. But no one is laughing this year. The Jets chose offensive tackle Mekhi Becton out of Louisville. Becton is a massive man with massive talent. Mass torts are massive because plaintiff lawyers assemble case inventories bloated with garbage. We don’t blame plaintiff lawyers for doing what is economically rational, but we do blame courts that refuse to permit any means of separating the wheat from the chaff. Still, there are some courts that permit a vetting process in the form of early requirements of proof of use and proof of injury. Those courts are getting it right. Look, if even the Jets can get a draft pick right, shouldn’t we expect judges to get things right more often than not?
12. Rule 9(b) specificity. Fraud claims are sexy and are the stuff of punitive damages. But in their desperation to cobble together a deceit cause of action, plaintiffs often leave out crucial details, such as who, what, where, when, etc. Rule 9(b) says that plaintiffs must write more specific complaints. Sometimes they can. Sometimes they can’t. Our posts on this topic are usually on the can’t cases, like this one.
13. Fraudulent joinder. We defense hacks prefer federal court. Plaintiff lawyers seem to see things differently. One way to fend off removal to federal court is to sue a nondiverse party, such as a doctor, retailer, pharmacy, etc. But if that claim is utter bunk, you can persuade a court to drop the fraudulently joined party and place the matter in the loving hands of an Article III federal judge. It is not easy, but it works often enough to generate a number of posts, such as this one.
14. Federal question. This is another potential basis for removal, and we discussed an interesting route to federal question here.
15. Statute of limitations/repose. We often steer clear of statute of limitations cases because they are so fact-specific. But there is no denying that this defense is a possibility in many cases and poses an existential threat to the case. It’s nice to have this defense in the toolbox for mediations or settlement negotiations.
16. Primary jurisdiction. At pick 16 in the NFL draft, the Falcons came up with the first serious head-scratcher, cornerback AJ Terrell from Clemson. Great player, but not ranked by many to go this soon. So it is with primary jurisdiction. Consider it a less impactful teammate of preemption. But if the theory of the case really depends on an impending agency determination, primary jurisdiction can be a valid derailment. Here is an example.
17. Random bellwethers. We love a random bellwether selection process. Some judges don’t like the loss of control. Okay, random does not guarantee representativeness, but party selection guarantees nonrepresentativeness. And here’s the dirty secret (admitted to us by a plaintiff lawyer during heated discussions): plaintiff lawyers do not want bellwether trials of representative cases. Now why do you suppose that is?
18. Manufacturing defect – no deviation from specs. Almost every drug or device product liability complaint alleges a manufacturing defect, and almost no case ever proves it. It is too often a make-weight claim. Or a manufacturing defect claim can be a plaintiff’s effort to manufacture a detour around preemption. Usually, there is no hint of a deviation from a specification. Usually, the manufacturing defect claim is just a design defect claim in disguise. Bexis wrote a post about how to spot the difference here.
19. Choice of law (Erie). The genius of federalism is the notion of states as laboratories. But some of those laboratories cook up poisonous judicial systems. Then again, some states have pretty good laws on the impact of compliance with federal law (hello, Michigan and New Jersey) and some are good on punitive damages (who dat? Louisiana). Under Erie, federal courts aren’t supposed to invent move causes of action. Occasionally, courts actually abide by this rule.
20. Discovery/social media. We once had a case where a woman claimed catastrophic, disabling injuries. Then she posted on Facebook how she had just won a rodeo event. We liked that post.
21. Pari delicto. The Philadelphia Eagles picked in the 21st spot. Most experts, and most residents of the City of Brotherly Love (all of whom consider themselves experts) panned the first two Eagles’ selections as dumb or even bizarre. So, in honor of the Eagles, we now pick pari delicto, which is something of a squirrelly concept, and not often available. It doesn’t feel great to say, ‘You say we’re bad, but so are you.’ Still, as set forth in this oldie-but-goodie post from 2009, it can be a winning defense.
22. Forum non conveniens. Sometimes cases get filed in a place that is convenient for no one but the plaintiff lawyers, or their wallets. FNC is a legitimate basis for moving a case from crazytown to a place that actually is connected to the case. But good luck trying it in our hometown. Apparently, Philly judges think that the intersection of Broad and Market is always convenient.
23. Chart comparison of experts. In most cases the treaters are on the defense side. (When they are not, we know we are running uphill.) by contrast, the plaintiff experts are out on BS Island. We love drawing up charts for closing argument showing alignment of our experts with the treaters, while the plaintiff experts are offering litigation-driven opinions that agree with nobody else. We might even use different colors to highlight he difference. Low-tech, but effective.
24. Medical Association opinions. This topic is related to the prior one. Here, instead of saying our experts agree with the treaters, we’re saying that our experts agree with the relevant medical associations. Or, put another way, we’re saying that the plaintiff experts are at odds with the relevant medical associations. And then, inevitably, the plaintiff lawyers will suggest that the medical associations are bought and paid for. Sigh.
25. Regulatory clearance/approval. Sometimes the NFL draft will go on positional runs, where it is as if teams en masse suddenly wake up to the appeal of selecting, say, wide receivers. Take the 49ers for example, who traded into this slot (25) and took Arizona State route runner Brandon Aiyuk; or the Las Vegas Raiders (that’s right, Las Vegas!), who used three of their first four picks on wide receivers. Right now, we seem to be on a run of finding other sources to bless our experts’ opinions. Preemption is not necessarily the end of the relevance of regulatory story. (Although we have yet to see what the ultimate effect of the Albrecht decision will be.) Sometimes we can use the regulators as bodyguards. They approved our product. They approved our label. They have a public interest. The hind-sighting plaintiff expert has an interest in a red Maserati.
26. First Amendment. Who doesn’t enjoy wrapping themselves in the flag? The First Amendment becomes relevant in various contexts, including product promotion (including off-label) and other public communications. Here is one of many discussions of the intersection between constitutional and tort law.
27. Other similar acts. This topic brings us back to our prosecutorial days, when we almost always had the option of dangling the defendant’s prior criminal acts in front of the jury. The issue is governed by Fed. R. Evid. 404(b). In civil cases, the existence of other similar acts can conceivably crop up on either side of the v. There is ample case law. Some of it is discussed here.
28. Comparative/contributory negligence. We recently had the good fortune to litigate in one of those old fashioned jurisdictions where the plaintiff’s contributory negligence is a complete defense. The availability of that defense supplied a huge incentive for the plaintiff to enter into a reasonable settlement. But comparative negligence is the much more common rule, and sometimes defendants are reluctant to mount that defense at trial, because the jury might use it as an excuse for finding fault on the part of the defendant when they wouldn’t if faced with an all or nothing choice.
29. Medical monitoring. This is not exactly a favorite topic, except to the extent a smart court gives it the back of the judicial hand. Here is one example.
30. Lone Pine orders. By this point in the draft, the can’t-misses are gone. Now we start looking for potential big upsides. A Lone Pine order forces plaintiffs to supply an expert affidavit laying out a coherent medical causation theory. It is a relatively efficient way to compel plaintiff lawyers to offload meritless cases. But courts seem reluctant to employ this technique. Too often, courts will not issue Lone Pine-type orders until a mass tort is well past the mature stage in an effort to cut off the tail. If it works then, why wouldn’t it work sooner? Here’s one tip that might slightly improve your odds of getting a Lone Pine-type order: call it something else.
31. Settlement. We used to look at settlement teams with skepticism, wondering whether they are real lawyers. Then we got involved with some of them. We found out that settlement is at least as complicated and heady as arguing motions. In fact, we now have to admit that some of the smartest lawyers we’ve met are in the settlement game. We’ve heard some clients say that a great settlement lawyer is more valuable than a great trial lawyer. Best to have both.
32. Idiopathic causation. When you sit at the end of the draft the pickings are slim. In the NFL draft, the last player drafted is called “Mr. Irrelevant.” That’s where we are now. Idiopathic essential means … dunno. It’s a real medical causation theory. It probably is much more true than the plaintiff’s who dunnit story. But it seems like an unsatisfying meal. Except … we once convinced a jury that an injury was, indeed, idiopathic. Just like in the NFL, every once in a while Mr. Irrelevant turns out to be a winner. (This year’s Mr. Irrelevant is linebacker Tae Crowder, drafted by the Giants. Crowder was the leader of a very tough Georgia defense. We wish him good luck.)