It’s only a small piece of what product liability claims are all about, but the Sixth Circuit in Fulgenzi v. PLIVA, Inc., No. 12-3504, slip op. (6th Cir. March 13, 2013), has ruled (creating something of a circuit split with the 5th Circuit’s nonprecedential Morris decision from last month), that “failure to update” claims
Every now and then we run into a decision that we think is wrong in so many different ways that we call it an example of “spherical error” – that is, error no matter how one looks at it. We only do that rarely. Back in May, 2010 we first applied that description to In re Gadolinium-Based Contrast Agents Products Liability Litigation, 2010 WL 1796334 (N.D. Ohio May 4, 2010). Then in September of that year we likewise identified spherical error in Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F. Supp.2d 380 (E.D. Pa. 2010) – or at least the Pennsylvania part of it, which dealt with the law we knew best.
That’s it – two cases earned that sobriquet in the blog’s six-plus years of existence.
Make that three.
The recent decision in Arters v. Sandoz Inc., 2013 WL 308768 (S.D. Ohio Jan. 25 2013), likewise bollixed up the law in so many different ways that we think it rises (falls?) to the level of spherical error.
Arters involved a question that a lot of courts have considered lately with almost (but not quite) uniformly good results – preemption in the context of generic drugs following PLIVA v. Mensing, 131 S. Ct. 2567 (2011). As in many generic preemption cases, the defendant sought to have the case dismissed under Rule 12.
That – Rule 12 – is the first error in Arters. The decision states:
A motion for judgment on the pleadings pursuant to Rule 12(c) should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Arters, 2013 WL 308768, at *1.
Umm…. No.
Someone must have been the second coming of Rip Van Winkle and slept through the last five years. In a rather well-publicized decision, back in 2007, the Supreme Court expressly overruled Conley on specifically this “no set of facts” point. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-63 (2007).
Twombly? Maybe you’ve heard of it. If so, you’re already one up on Arters. Anyway, the Supreme Court in Twombly explicitly “retired” the Conley standard relied upon in Arters:
On such a focused and literal reading of Conley’s “no set of facts,” a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery. . . . It seems fair to say that this approach to pleading would dispense with any showing of a reasonably founded hope that a plaintiff would be able to make a case; Mr. Micawber’s optimism would be enough.
Seeing this, a good many judges and commentators have balked at taking the literal terms of the Conley passage as a pleading standard. [many citations omitted] We could go on, but there is no need to pile up further citations to show that Conley’s “no set of facts” language has been questioned, criticized, and explained away long enough. . . . [A]fter puzzling the profession for 50 years, this famous observation
has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard.
Twombly, 550 U.S. at 561-63 (emphasis added). Then, a couple of years later, the Court made clear that Twombly’s interment of the Conley language cited in Arters applies across the board to all types of cases. See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009).Continue Reading Spherical Error Revisited
We appreciate being on Joe Hollingsworth’s mailing list – we really do. Much of the Aredia/Zometa stuff he sends us is manifestly blogworthy. That, and all things being equal, we’d rather discuss a defense win than a defense loss. Joe doesn’t send us his bad ones (although certain plaintiff lawyers do pass
The big developments – the Caronia opinion, and the Supreme Court’s grant of certiorari in Bartlett – along with other distractions, such as our ABA Blawg 100 award, have left us with a pile of unblogged stuff that we think is of interest to our readers. Today we’re taking a crack at that pile. We apologize in advance if these discussions aren’t as detailed (and thus aren’t as useful) as our usual posts.
California Leans Daubert
California has long gone its merry, idiosyncratic way in the Daubert/Frye wars. The California Supreme Court has fashioned something called “Kelly/Leahy” after the names of the two most important opinions. However, in Sargon Enterprises, Inc. v. University of Southern California, ___ P.3d ___, 2012 WL 5897314 (Cal. Nov. 26, 2012), the court spoke about California expert admissibility with a distinct Daubert accent. Sargon (great name – it evokes space aliens, unknown elements, or even ancient Sumer) is a drug/medical device case only in the loosest sense. It’s about an alleged “breach of a contract for the [defendant] to clinically test a new implant the [plaintiff] had patented.” Id. at *1. The expert testimony at issue involved lost profits. Id. at *2. The testimony was vague and tautological, involving the expert’s supposition that the defendant, because it was “innovative,” would have joined the “big six” dental implant manufacturers. But he measured “innovation” according to “the proof is in the pudding” – successful companies were “innovative,” less successful ones less so. Why was the plaintiff company “innovative” even though it was small? That opinion was a bunch of gobbledygook and jargon amounting to “because I think so.” See Id. at *3-5. The trial court threw the expert out. The Court of Appeals reversed and found the testimony admissible, then the California Supreme Court granted review.
This blog doesn’t care all that much about the ins and outs of calculating lost profits, but we do care about the standards for expert admissibility. Sargon is noteworthy for the court’s repeated reliance on the federal precedent that we have (usually) come to know and love, starting with “[u]nder California law,
trial courts have a substantial ‘gatekeeping’ responsibility.” Sargon, 2012 WL 5897314, at *14 (footnote citing Joiner and Kuhmo Tire omitted). That leads to “[e]xclusion of expert opinions that rest on guess, surmise or conjecture is an inherent corollary to the foundational predicate for admission of the expert testimony.” Id.Continue Reading Stuff
Yesterday we threw up a “breaking news” post on the Third Circuit’s latest reiteration of its prediction that Pennsylvania would move from the Restatement (Second) – or more precisely from its unique and peculiar interpretation of §402A – to the Third Restatement in product liability cases.
In response we received a comment/question from Ned Madeira
Today’s post is of the “this and that” variety − dealing with things we’ve come across that we haven’t yet blogged about this week.
As defense counsel appreciate, PMA preemption post-Riegel floats like a butterfly and stings like a bee. Anybody representing PMA medical device clients will
When we saw the first one we thought, that’s odd, but it’s mostly a malpractice claim pretty far from our sweet spot. When we saw the second one, we thought, maybe we should blog about this now…. But the result was mostly unfavorable, and other, more significant things were happening. But now that we’ve seen
To our readers:
Sorry about that. Blogger was down for almost 24 hours yesterday and this morning. In almost five years, we’ve never experienced that during business hours. Anyway, that combined with Bexis having to fly to the west coast for the ALI annual meeting, kept us from posting until now.
Here’s the post we
We have to admit that we’re scratching out heads about a recent decision out of Alabama that – contrary to everything else we’ve seen – concluded that the manufacturer of a branded drug could be liable in a case where it never sold the generic product that was all the plaintiff every took and thereby
Usually, when we’ve had occasion on this blog to touch on the Erie doctrine, it has been in the context of castigating one federal court or another for adopting an expansive view of state tort law in the absence of state court authority for that interpretation.
But there’s more to Erie than that, and