As we round the clubhouse turn and head into the home stretch of this annus horribilis, our nominee for the word of 2020 is “doom-scrolling.“ We’ve sacrificed entire nights of sleep to our iPads, pursuing the latest news (real, fake, or hybrid) of infectious diseases of both the body and the body politic. Three a.m. lucubrations are seldom tranquil or reassuring. Even when our frenzied internet research steered clear of current controversies, we frittered away hours in an oneiric word association game. And then a gray glow appeared around the fringes of the windows. Trucks rumbled by with dawn deliveries. What would the morning bring us? Weariness sank in, along with resignation. Another damned Covid day.
Last week we alluded to Bertrand Russell’s essays about various luminaries he had met, including Joseph Conrad. It was inevitable that we would take Russell’s essay as a cue to tour Wikipedia and other sites to learn more about Conrad. Most of it we already knew – how Conrad spoke several languages (certainly Polish and French, and possibly German and Russian) before he learned English; how Conrad had a successful career as a seaman; and how Lord Jim, Nostromo, and Heart of Darkness occupy secure places in the Western Canon. Some of it arrived as news – how Conrad’s father was a well-regarded translator of Shakespeare; how Nabokov rated Conrad poorly; and how the great Nigerian novelist Chinua Achebe blasted Heart of Darkness as a racist work that employed African natives as “props for the breakup of one petty European mind.”
It was after midnight when we clicked onto the Project Gutenberg site and reread Heart of Darkness for the first time in 40 years. Most of you have some familiarity with the story, even if only from Apocalypse Now. The narrator, Marlow (think backwards to the British playwright or forwards to Raymond Chandler’s detective) takes a boat upriver into the interior of Africa to meet a manager, Kurtz, legendary for his productivity. His district brought in more ivory than all the others combined. There was a cost to this efficiency. Kurtz’s prolonged stay upriver saw him descend into madness. He had yielded to unspeakable rites and unsound methods, and cast away rationality and anything approximating good intentions. “Exterminate the brutes” became his rule. His final, gasping assessment of his life was “the horror, the horror.”
Achebe was right that the natives in the story are barely accorded any humanity. They are “acute angles” of suffering and are described with epithets unprintable here. We’d be surprised if Heart of Darkness is permitted in current high school curricula. But Conrad wasn’t blind to the cruelty of colonialism. Though the African country is not named in the story, we know it was the perversely named Congo Free State, a private, sadistic playground for Belgium’s King Leopold. Maybe Marlow, the narrator, was indifferent to the injustice (maybe not) but Conrad wasn’t. In most of the tale, Marlow plies up the Congo River into the heart of darkness, but the story begins and ends on the Thames, and Conrad tells us that it, too, flowed into the heart of darkness. The horror visited upon colonial outposts was devised in enlightened Western capitals.
Achebe grudgingly allowed that there is something seductive, almost hypnotic, in Conrad’s prose. We are a long way from Russell’s bracing lucidity. One critic described Conrad’s “adjectival insistence on inexpressible and incomprehensible mystery.” That is an insight, perfectly on point and perfectly expressed, that must leave us breathless. It wonderfully mimics Conrad’s style. Want proof? At one bend of the river, Marlow stares at the banks and sees “the stillness of an implacable force brooding over an inscrutable intention.” Achebe might call that a dehumanizing otherness, but Conrad’s inquiry is more psychological than cultural. Behind the calm coastline, or beneath the veneer of civilization, there is an atavistic mess of fear and desire. There are no rules there, save for the rule of tooth and claw. Call it the heart of darkness.
We lawyers dwell largely on the veneer, and are glad of it. Whatever nobility there is in the profession rests on logic, fairness, proportionality, and incremental gestures in the direction of justice. But sometimes we have to contend with the rawer stuff. Years ago we were at a conference for plaintiff lawyers. A couple of defense hacks had been invited as curiosities. To be fair, we were treated with kindness and respect, and it was exhilarating to hear competing perspectives in a convivial setting. At one point, a plaintiff lawyer whom we rank highly told us about one of his cases. A hospital patient had been exposed to a contrast medical dye that did not exit his body on schedule. That slow exit was due to the patient’s renal insufficiency. The result was that the chemical gradually hardened his internal organs. Death was inescapable and prolonged. In that colorful way that the other side is particularly good at, the plaintiff lawyer characterized the effect as becoming like a statue underneath the skin. That’s a nice turn of phrase, but there was a catastrophic reality underneath the words. The doomed patient spent his last 72 hours on earth screaming on a hospital bed. That, at least, was the story. The horror.
The product was gadolinium. For a while, that story was all we had heard about the dye, and it was alarming. Then we read a Daubert ruling from the gadolinium MDL, and it was one of the most one-sided, anti-defense opinions we ever saw. The gatekeeper seemed strangely selective. Bexis executed a comprehensive take-down of that opinion here. We never got involved with the gadolinium litigation, but we knew it posed enormous challenges.
The Gadolinium litigation evolved, perhaps the plaintiff lawyers overreached, plaintiffs without renal insufficiency filed lawsuits, and defendants turned the corner. This second wave of Gadolinium litigation has been nowhere near as scary as the first. We’ve summarized some good preemption decisions here and here, for example. One was from the Western District of Louisiana. Here is another one: in Smith v. GE Healthcare Inc., et al., 2020 WL 1880787 (W.D. La. March 31, 2020), the magistrate judge recommended dismissal of the plaintiff’s claims for design defect and for failure to warn of the dangers if gadolinium is not completely eliminated from the body.
The design defect claim in Smith ran aground on the Bartlett principle that “when a party cannot satisfy its state duties without the Federal Government’s special permission and assistance, which is dependent on the exercise of judgment by a federal agency, that party cannot satisfy those state duties for preemption purposes.” The plaintiff in Smith contended that the gadolinium manufacturer should have made a chemical change, switching from linear bonds to macrocyclic bonds. Whether or not that would be a good idea, it would have been a change to the qualitative formula, thereby constituting a “major change,” as far as the FDA is concerned. Such a major change cannot happen without FDA approval. The manufacturer could not unilaterally have switched to the alternative design for gadolinium. Under the independence and impossibility prongs of post-Bartlett analysis, the design defect claim in Smith was preempted.
The failure to warn claim in Smith also sank on the shoals of preemption. The classic plaintiff maneuver around preemption of failure to warn claims is to assert that the manufacturer was on notice of new risk information and could and should have submitted a warning per the “changes being effected” provision in the FDA regulations. But the risk at issue here was not truly new and did not so much address the health risks of gadolinium retention as it did the predicate fact of retention. More crucially, the SCOTUS Albrecht decision came into play, as there was clear evidence that the FDA would not have approved a warning about the alleged adverse health consequences of gadolinium dye injection. In May 2018, the FDA issued a warning about gadolinium retention, but specifically added that no causal relationship between retained gadolinium and any adverse effect in patients with normal renal function had been established. Thus, the failure to warn claim was preempted and had to be dismissed.
Smith is a sound preemption result in gadolinium litigation, and part of an overall good trend. That trend is not without its hiccups, as we found out last month when we reviewed a bad gadolinium preemption decision out of New Jersey. For some of us, the river that winds its way toward the heart of legal darkness is neither the Congo nor the Thames; it is the Passaic.