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Sunday was a pretty good day. It was both Father’s Day and Bloomsday.  June 16 is called Bloomsday because that is the day that Leopold Bloom and Stephen Daedalus wandered around Dublin in James Joyce’s Ulysses.  There is an all-day reading of Ulysses every June 16 at the Rosenbach Library in Philadelphia, the home…

Usually when we analyze a case we skip through the preliminaries and try to cut straight to the chase.  That means reading past the standard of review and the generally applicable rules governing the procedure at hand.  Some people act the same way when they write briefs.  They assume it is all interchangeable and doesn’t much matter.  So they plug in the same-old-same-old for, say, summary judgment or Daubert.  But that is a mistake.  A lot has been said by a lot of courts on those standards, and some things we like better than others.  Shame on any brief writer who does not spend time and ink emphasizing the best bits of the relevant procedural standard.  And shame on us for not espying the hints provided by the court early on that almost make the ultimate substantive result seem inevitable.

Something like that happened in Brown v. Roche Laboratories, Inc., 2013 U.S. Dist. LEXIS (N.D. Ga. June 6, 2013), where the court came out with a very good Daubert and summary judgment decision, and where the court supplied the foundation for that decision up front.  In Brown, the plaintiff had taken Bactrim for a sinus infection.  No, this case is not about Bactrim, not really.  But the Bactrim usage ended up dooming the plaintiff’s expert’s causation opinion.  After the Bactrim usage, the Brown plaintiff experienced a fever, headache, and other symptoms.  Her doctor feared that she had developed bacterial meningitis.  Accordingly, the doctor administered doses of Rocephin.  The doctor was aware of the plaintiff’s penicillin allergy, and knew of the  potential cross-reactivity between Rocephin and penicillin.  Nevertheless, the doctor believed that the potential risk was outweighed by the benefit of treating suspected meningitis.  That is the sort of thing that doctors do.  As far as we can tell, the plaintiff in Brown had no complaint about any alleged medical malpractice.  Subsequently, the plaintiff came down with SJS/TEN, a terrible disease about which there has been much high-stakes litigation and about which we have written before.  There are many terrible consequences of SJS/TEN.  At least in Brown, bad law was not one of them.Continue Reading N.D. Ga. Rule 702 Analysis Excludes Plaintiff’s Expert and Ends SJS/TEN Case

You have almost certainly heard the phrase, “Waiting with bated breath.”  As in: we awaited the Red Wedding scene in Game of Thrones with bated breath.  Or:  we greeted the Drug and Device Law Son’s diploma  ceremony with bated breath.  (The former was impressive and awful. As one friend wrote on his Facebook wall, if you had a favorite character in GoT, maybe now you don’t. The latter was the occasion for unalloyed joy, and we expect to be levitating for a while – at least until the first college tuition payment comes due.)   Maybe you thought it was “baited breath,” as if referring to some sort of seafood-borne halitosis.  But, no, it’s “bated,” meaning restrained, lessened, diminished, or stopped.  The word and the phrase in which it typically resides have been around since at least Shakespeare.  This is from The Merchant of Venice, Act I, scene iii:  “With bated breath, and whispering humbleness.”

“Bated” is a variant of “abate,” a word that almost any lawyer has bumped up against more than a few times.  Different jurisdictions can have slightly different meanings for the concept of abatement, but it usually refers to some external reason for putting off or dismissing a case.  Like jurisdiction or, say, preemption, it offers a way of kicking a case on grounds pretty well divorced from the underlying merits.  For that reason lawyers find it enthralling and non-lawyers find it maddening.  In our days working on diet drug cases, it was amazing how many of the plaintiffs had filed for bankruptcy yet had not listed their tort claims as an asset of the estate. That omission, whether intentional or not, could lead to abatement of the tort action until things were set right in bankruptcy court, perhaps even reopening the bankruptcy proceedings.  Or maybe the failure to list the claim could form the basis of an estoppel with respect to the tort claim.  You denied having any such claim, so now you cannot pursue it.  We have posted before on bankrupt plaintiffs.

Here in our charming little commonwealth of Pennsylvania, one common species of abatement arises when the plaintiff dies and the substitution of the estate is not accomplished properly.  That abatement recently resulted in out-and-out dismissal of one of the cases in the Aredia-Zometa MDL —  In re Aredia and Zometa Products Liability Litigation,  2013 WL 2317743 (M.D. Tenn. May 28, 2013).  The Aredia-Zometa MDL is based in M.D. Tenn., but the particular case at issue was governed by Pennsylvania law.  The facts are as convoluted as these things usually are, and the court seems to have been displeased with the way things were handled by the plaintiff’s side.  It was actually the Magistrate Judge who seemed especially displeased and who initially recommended dismissal of the case.  The plaintiff did not file timely objections, and the district court did not appear to wait with bated breath in adopting the recommendations.Continue Reading We Greet a New Aredia-Zometa Dismissal with Abated Breath

The reason that so many law firms have casual Friday (or casual everyday) dress policies is because back in the 1990s they took a cue from their sexier (i.e., high-tech) clients, who shed three-piece suits in favor of Dockers and polo shirts. Imitation was not flattery nor was it mere sycophancy. Rather, it made good business sense. We wanted to entice those 22 year old dot.com-mers with forward-looking hipness, and Brooks Brothers and Brioni suddenly seemed repellent. Law firms are conservative institutions. They are laggers, not early-adopters. The clients are always ahead of us. We find that out every time we deliver CLE lectures on compliance to in-house counsel; invariably, the in-house lawyers have come up with policies and techniques light years beyond our puny recommendations.

Several of our clients are blazing a trail when it comes to office design. Many of our friends from high-tech companies in the communications and health care fields are moving into new digs with open floor plans. This development is a dramatic leap over what we have dealt with since … well, since we joined the working world.   To be sure, even in the 1980s some financial houses (including several that are now defunct) were famous for their open bullpens, but they were the exception, not the rule, at least among our clients.  When you enter a typical, traditional office, and certainly a traditional law firm, you will encounter the usual circle of office-boxes, with inner and outer rings for perambulation. The idea is to get to that inner ring quickly when you are trying to go somewhere. But there is a cost to that efficiency. You end up avoiding contact with your colleagues. You can spend an entire day without bumping into more than three or four people. That’s a pity.

The trend is away from those offices and those rings.  The International Facility Management Association reported last year that more than two-thirds of new workplaces adopted an open plan.  Why is that?  To begin with, it is cheaper.  If you are in an open space, you don’t need as much space dedicated to you personally.  You won’t feel claustrophobic in a 4×6 area if it is surrounded by vast vistas of corporate wonderfulness, but you would if that was the size of your enclosed box.  The average amount of space per employee in the United States has dropped by over a third since 1985, from 400 square feet to 250.
Moreover, the open plan allegedly promotes efficiency.  A study in the Harvard Business Review concluded that companies “that encourage collaboration by switching from closed-offices to open-offices realize performance increases (speed and accuracy of work) by 440%.” Could that be from enhanced creativity? Or that it is harder to do online shopping when your computer screen is so much more conspicuous?Continue Reading Interior Decorating and the Email Scourge

Our last few weeks have been filled with depositions.  Mostly we have been defending them.  And mostly we have exited the proceedings feeling they were non-events.  That is precisely how you want depositions to be when you are defending.  No doubt many of you have seen videos of crazy depositions, with bellicose attorneys, mask-wearing family members, or witnesses who artfully boil down their entire testimony to two words.  Those depositions happen to other people, and we are glad of it.

When we were fresh out of law school (supply your own interpretation of “fresh”), depositions were viewed as the first stepping-stone to being a real litigator.  Before our first deposition, in a case involving stolen dirt, we must have read every practice guidebook in sight.  We sought out advice.  We perused stray deposition transcripts lying around the office.  And then the big day arrived.  The deponent arrived with a friendly handshake.  We didn’t expect that.  He wore a bolo tie.  He was a well-tanned septuagenarian.  Whether he was also a dirt thief (a big deal if you want to build houses in Palm Springs) was the issue at hand.  But first some preliminaries.  We traipsed through the usual admonitions.   When we arrived at the question about whether the deponent was taking any medication, this is what we got:  “Why, yes, young man, I am.  As you have no doubt noticed, I am an elderly man.  But I am also a man of appetites.  I still very much enjoy the physical act of love.  To maintain my desired level of amorous activity [he really did talk a little bit like Foghorn Leghorn] I take hormone pills throughout the day.  Shall I tell you how they work?”  Um, no thanks.  We were stumped.  Sometimes young lawyers learn the dance-steps but do not know the reasons for them.  It was not obvious to this particular young lawyer how to follow up on the information about the passion pills.  Would the deponent need an especially long mid-afternoon break? (Cue the Starland Vocal Band.)  We never did find out for sure what happened to that dirt.

Nowadays we think we genuinely know what we’re doing at depositions.  And this confidence has earned us the right to be cranky.  Hardly a deposition takes place where we do not grow exasperated with our opponents.  Whether we are taking or defending depositions, within fifteen minutes we become convinced that the advocate across the table from us is a dunce.  It is hard not to throw something when, after we launch a perfectly sensible question seeking concrete, percipient knowledge on the part of the witness, the defending (some insist on using the term “guarding”) lawyer sees fit to interject this bit of deep advice:  “If you know.”  Nothing shouts out bush league like “if you know.”  Look, shortly after we ask about medications (yes, we still do that, and now we even know why), we tell the witness that we are seeking personal knowledge, not guesses or speculation.  There is no need to remind witnesses that they should answer only if they know.  When we are greeted with that spurious non-objection — a transparent effort to coach the witness to say “I don’t know” — we usually hearken back to the admonition about personal knowledge and inquire whether the witness recalls it or whether a blunt instrument has descended upon the witness’s noggin so as to render that poor individual incapable of remembering or understanding that rather elementary point.   Sadly, such an act of shaming seldom deters the litany of “if you know”s.Continue Reading Deposition Lojinks

People usually think it’s a good thing to be “on a roll.”  But that is not always the case.  We have defended client depositions where there was nothing worse than a witness on a roll, especially if that was a roll of Yeses (“Q:  You have worked at the company since 2002, right?  A:  Yes.  Q:  And you obtained a degree in biochemistry from Rollins College, right?  A:  Yes. Q:  And you think puppies are adorable, don’t you?  A: Yes.  Q:  And your company has a responsibility to warn of all known risks, right?  A:  Yes.  Q:  And your IFU omits a number of key risks, doesn’t it?  A:  Yes.  Q:  And don’t you hate it when people talk during movies?  A:  Yes.  Q:  And the court ought to direct a verdict against your company, right?  A: Yes.  Q:  And would it be fair to say that this is a splendid case for punitive damages?  A:  Yes.  Q:  And don’t you agree that an Audemars Piguet Royal Oak watch would look great on my wrist, especially if that wrist was wrapped around the wheel of a Maserati Quattroporte?  A:  Yes.”  Etc.)

Sometimes courts can get on a bad roll, too.  When a court is determined to deny a defense motion to dismiss claims, it will find a way to tube every argument in sight, even those oozing merit.  That’s what happened in Hwang v. OHSO Clean, Inc., 2013 WL 1632697 (N.D. Cal. April 16, 2013).  In Hwang, the plaintiff brought a purported class action on behalf of a nationwide class of consumers who purchased the defendants’ sanitizing products.  The issue was whether the labels on the cleaners overstated the efficacy of the products – by saying, for example, that the cleaners “kill 99.9% of the harmful germs that can make you sick.” The legal claims sounded in various theories, including: 1) breach of express warranty; 2) deceit; 3) concealment; (4) False Advertising Law (“FAL”); 5) California’s notorious Unfair Competition Law (“UCL”); 5) Consumers Legal Remedies Act (“CLRA”); and 6) the federal Magnuson Moss Act.

In their Motion to Dismiss, the defendants contended that all of the plaintiff’s claims were preempted under the Federal Food Drug and Cosmetic Act (our beloved “FDCA,” the hook that permits us to discuss a case that is otherwise far afield from our usual stuff) and/or foreclosed by Pom Wonderful LLC v. v. Coca-Cola Co., 678 F.3d 1170 (9th Cir. 2012), a case that we have commented on (here, for example) at least as many times as we have enjoyed the fine beverages manufactured by either Pom Wonderful or the Coca-Cola Company. Here is a little pause to refresh your memory of that case:  in Pom Wonderful the Ninth Circuit held that the plaintiff’s Lanham Act claim that the defendant’s juice product label was misleading was barred by the FDCA and the regulations promulgated thereunder by the FDA, because those regulations indicated that the FDA had already considered and spoken to what content a label must bear and had apparently authorized the defendant’s labeling. The Pom Wonderful decision was really about the doctrine of primary jurisdiction more
than preemption.  It was still pretty wonderful.Continue Reading A Stale Roll and a Dismal Clean Sweep

The geezers in our family have been busy recently ululating over the rule of three celebrity deaths. We are not sure we have ever before witnessed a trilogy quite like Roger Ebert, Margaret Thatcher, and Annette Funicello.  An aunt insists that it is actually a trilogy of three celebrity women, with fashion designer Lily Pulitzer…

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn more about this book