Like many of you, on Friday mornings we turn to the “Legal Lions and Lambs” section of Law360.  It is not only voyeurism.  We are constantly working on things in media res (the middle of things), building slowly and gradually to a climax that  hardly ever arrives.  Ninety percent of cases settle, and that is seldom the stuff of Lions or Lambs. Nope: the Lions vs Lambs dichotomy is about winning and losing.  Not in any subtle sense, either.  The Law360 column focuses on trial verdicts or dispositive motions.  Those outcomes furnish teaching moments, points of inspiration, object lessons, or cautionary tales.  We have never personally shown up on either side of the list as far as we know, mirabile dictu (wonder to say – surely mastery of Latin is a mark of a Legal Lion, no?), given that we played a minor role in that vast stain on Anglo-American jurisprudence not-so-fondly remembered as the Engle tobacco litigation in Miami).
We know this much: we’d rather be a Lion than a Lamb. The Lion is king of the jungle. MGM pictures start majestically with a roaring lion.  King Richard was lion-hearted.  The hero in the best Disney animated movie was a lion. So was Barry Sanders.  By contrast, Lambs get led to the slaughter.  We count them as we try to fall asleep.  Their silence is the central image to the creepiest movie we have ever seen.  Worst of all, we garnish lamb chops with mint jelly.
Over the last couple of weeks, we saw some entries in the “Lambs” section that caught our attention because they involved lawyers we know and respect.  These lawyers defended drug or device companies that got tagged by juries with eye-popping verdicts.  These defense lawyers are, to put it plainly, great lawyers.  We co-tried, and won, a case with one of them, and counted two others as colleagues in the US Attorney’s office a long time ago.  Their skills are extraordinary.  They possess exquisite judgment, work hard, and give their clients the best possible representation.
And they lost the cases that landed them in Law360.  (One of them, by the way, had won a similar case a couple of months before – the first defense lawyer to do so.  Before he was a Lamb, this lawyer was a Lion). Suddenly, we decided that we disliked the “Lambs” label.  Law360 surely does not mean to insult anyone in the Friday column, but there is something undeniably negative about the “Lambs” term, and undeniably unfair.  We bet those lawyers on the losing end went down, not meekly, but swinging.
The fact is that great lawyers occasionally lose cases.  Why?  To begin with, great lawyers are given the hardest and most important cases.  We know a very smart in-house lawyer (in fact his company was involved with one of the cases that caught our attention in the Lions and Lambs column) who likes to ask lawyers begging for business from him to name their worst loss.  Too many lawyers pretend they have never lost, or immediately show their insecurity by ladling on the excuses. But think of the two or three best trial lawyers you have ever encountered.  Maybe there is a plaintiff lawyer in Houston with a photographic memory and unsurpassable eloquence. Maybe there is a corporate defense lawyer in Chicago who possesses laser-like focus and terrifying tenacity.  They have both been brutalized by juries. That is true for just about every other trial lawyer who has earned a glistening national reputation. Some cases are simply too hard. Some judges are simply too biased.  Or, most often, some juries are simply too batty.
When we consider our worst loss, we usually reflect on a near miss. (Right – we are cheating.)  We tried a case against one of the most unpleasant lawyers we have ever met.  You couldn’t trust his word.  He said things in open court that the Judge had explicitly ruled out of bounds.  But before violating the ruling, this lawyer would keep challenging it.  Again and again.  Every day was a new day.  (The rotten thing was that half the time the judge would give him something, as if that mollification would buy peace instead of inviting additional rounds of revisitations and defiance). He wasn’t a Lion or a Lamb.  He was a Weasel. The case was hard-fought, but we were sure we gave a bit better than we got, and our closing argument echoed Pericles (so we thought) while our villainous opponent cribbed his best lines from one of his competitor Texas plaintiff lawyers. His appeals to prejudice were utterly unoriginal. And plagiarism was the least of this scoundrel’s sins.  Be that as it may, it was now time to wait for the jury.  Our client, who was doubtless the smartest person in the room, took the plaintiff lawyer aside. They huddled and talked intently. One or two perplexing questions came from the jury.  Those questions were so unsettling as to provoke settlement. The in-house lawyer struck a deal with our adversary.  It seemed to us like a lot of money.   But there it was.

 

We informed the Judge. The Judge then informed the jury.  We then talked to the jury.  What they told us made none of us happy.  It seems that the jury was leaning toward awarding a verdict about ten times higher than the settlement. One member of the jury had been a bit, um, stealthy.  In voir dire she had disclaimed any relevant prior history at all.  It turned out that she had a daughter who suffered from a condition pretty similar to what the plaintiff claimed.  This juror pushed hard to become foreperson, and then pushed even harder for a punishing verdict.  We (the defense) were stunned.  But perhaps we weren’t quite as stunned as the plaintiff lawyer, who had bargained away his next vacation home.
We were almost Lambs.

 

There are lots of reasons why cases are won or lost, or settled.  We hate it when judges are outcome-oriented, and we should beware of that fault, too.  The best lawyers don’t always get the best results.  We can think of a case where one of the finest, smartest, smoothest two or three trial lawyers we ever saw lost to one of the two or three dopiest, clumsiest ones we ever saw. The jury was moved by undeniable facts and unavoidable sympathy.
Let’s have a little sympathy for those Legal Lambs.  They might very well be much better than the Lions, and they probably did a better  job than most of us would have done.  Heck, they probably don’t want our sympathy.  They are much too tough for that.  They are not Lambs at all.

Back in 2010 we started titling some of our posts “There’ll Always Be Posner,” in mimicry of the “There’ll Always Be an England” squibs in The New Yorker.  Just as there is something uniquely charming, majestic and, occasionally, flat-out weird about news from the quirky island that formerly ruled over us, there is something uniquely charming, majestic, and, occasionally, flat-out weird in legal opinions authored by Seventh Circuit Judge Richard Posner.  Or, we should say, former judge, as he stepped down from the bench this past weekend.

When we arrived at the University of Chicago Law School 35 years ago this month, Posner had recently vacated his full-time professorship at U of C in favor of an Article III position.  Nevertheless, he continued to teach classes in Hyde Park.  His influence on campus remained ubiquitous. Some professors (e.g., William Landes and Frank Easterbrook) continued to develop Posner’s law and economics analysis.  Even professors who parted company with Posner’s bottom line positions, such as Richard Epstein and Cass Sunstein, recognized the force of Posner’s breakthroughs and incorporated them, or at least took them into account, in their own scholarship.

While Posner’s work in integrating law and economics is an enormous achievement, there is so much more to his contributions to legal studies.  To begin with, his sheer output has been staggering.  Posner has authored over 50 books and 500 articles.  The Journal of Legal Studies counted over 7981 cites of Posner and rated him the most cited legal scholar in the 20th Century.  Not all of Posner’s books and articles were about law and economics.  In fact, most were not.  Nor have his writings been predictable.  If you had told us back in 1982 that Posner would later author a book titled The Failure of Capitalism, we might have stumbled into the Law School fountain.

Judge Posner has written over 3300 opinions.  They, too, are capable of surprise.  He has changed his mind more than once.  His positions on controversial subjects such as voter identification requirements or gay marriage have somersaulted. At one time Posner was routinely lumped in as a judicial “conservative.”  That is not only simplistic, but largely wrong.  The same Posner who, along with Aaron Director, Robert Bork, Frank Easterbrook, and others insisted that antitrust law be tethered to economic reality and consumer welfare, also clerked for Justice William Brennan, worked under Solicitor General Thurgood Marshall, and jousted fiercely with Justice Scalia over whether originalism was a correct mode of constitutional interpretation or a fool’s errand.  When the judge for whom we clerked, Ninth Circuit Judge William Norris, retired, he said that he would “reclaim [his] First Amendment rights.” That is, Norris planned on speaking out on political issues in a way he felt he could not while he wore judicial robes.  Posner has apparently never felt so constrained.  He has written or spoken quite pointedly on political and economic issues over the last several years.  Type “Posner” onto Youtube, sit back, and enjoy.  He has picked fights. He has named names. Our cultural discourse has been much the better for it.

As you might expect, the best summary of Posner’s method comes from Posner himself.  In his retirement note, he emphasized his pride in taking a “pragmatic” approach to judging, in writing opinions that are easy to understand, and in focusing on issues of right and wrong in every case.  Economic reality is one part of that pragmatic approach, but there is more.  Posner paid at least as much attention to how parties act in the real world as to what judges had written regarding vaguely similar fact-scenarios in old, and sometimes not clearly thought-out, opinions. Posner’s opinions were always clearly thought out, and, just as important, they were clearly expressed. The clarity of Posner’s opinions is no accident.  We know some people who clerked for Posner, and they confirm that Posner wrote every word of his opinions himself.  While it must have been an enriching experience to have worked closely with the great man, we also get the sense that Posner’s clerks had fewer responsibilities, almost reduced to the point of merely fetching him books, than other clerks.  Based on Posner’s criticisms of what he perceived as judicial over-reliance on clerks, that is not surprising.

We think that, like Judge Learned Hand, Posner will go down in history as being much more influential, and much more insightful, than all but a few Supreme Court Justices. As with Hand, it is a pity that Posner never ascended to our highest court.  He was simply too smart, too intellectually adventurous, too prolific, and too damned clear.  [Isn’t there something supremely silly about the way we currently pick Supreme Court Justices?  Instead of being a capstone to a long and distinguished legal career, positions on the Supreme Court are too often conferred on people who have a limited paper record, and whose birthdate promises a long term and maximum impact.]  Then again, remember that Hand believed in judicial modesty, and cautioned against being ruled by judicial philosopher-kings.  Posner’s pragmatism and attention to what he believes are right and wrong outcomes arguably makes him one of those dreaded judicial philosopher-kings.

When we encountered criticisms of Posner over the years, they usually centered on his lack of respect for precedent and for lack of predictability.  Posner seemed to delight in disposing of cases on jurisdictional grounds that none of the lawyers or the lower court had even considered.  That can be frustrating for advocates. Worse, Posner could be cruel to lawyers who seemed insufficiently smart or conversant with relevant precedent — and most lawyers, in Posner’s eyes, probably fell into that category.  Posner himself once acknowledged his similarity to his beloved pet cat, listing cruelty as one of their common traits.  Remember how we said that Posner’s opinions could be flat-out weird?  When Posner thought that a lawyer had been willfully blind to controlling precedent, he appended to his opinion a picture of an ostrich with its head in the sand.

Yesterday, we mentioned to one of our most trusted and admired colleagues that we were going to say a few words about Posner’s retirement.  He then told us a story that is so magnificently on point that we simply have to share it with you.  Our friend and some other folks, all tremendously smart and diligent, devoted many days to preparing another lawyer for a Seventh Circuit oral argument.  Posner was on the panel, so the preparation went the extra mile. When the very well-prepared lawyer approached the lectern, he didn’t even finish clearing his throat before Posner’s reedy voice cut in: wasn’t the case at hand on all fours with the case of X v. Y? (The case had actual names, but they have been lost in the mists of time.)  The preppers looked at each other in utter dismay. They had never discussed this case at all.  They had never heard of it. What a failure!  What an embarrassment! The poor fellow at the microphone admitted, as gracefully as he could, that he was unfamiliar with the case.  Through a thin smile, Posner supplied the citation. The case was from the House of Lords, and was over a hundred years old.  Was this gratuitous one-upmanship?  Well, the case really was a perfect precedent, and it demonstrated why our friend’s side should win.  And so they did.  Posner, as always, was the smartest guy in the room, and made sure to prove it.  But a win’s a win, so ….

In our own field of tort law, Posner’s batting average was exceedingly high.  We have almost always been dazzled by his opinions, whether on issues of statutes of limitations, forum non conveniens, plaintiff lawyer fees, off-label prescriptions, our beloved preemption, class certification (though we griped a couple of times when we thought he had gone soft on that issue), class action settlementscy pres, and many, many other topics.  It was Posner who penned our single favorite line about Daubert: “Law lags science; it does not lead it.”  Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996).  It was Posner who best understood how post-Levine “clear evidence” preemption could eliminate failure to warn claims. Robinson v. McNeil Consumer Healthcare, 615 F.3d 861 (7th Cir. 2010). It was Posner who wrote eloquently about the danger of aggregated litigation prompting blackmail settlements. In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298-1300 (7th Cir. 1995).  It was Posner’s discussion of negligence versus strict liability in Indiana Harbor Belt R.R. Co. v. American Cyanimid Co., 916 F.2d 1174 (7th Cir. 1990), that has become one of those judicial chestnuts that turns up in virtually every casebook.  Posner usually got it right, and in getting that rightness, his writing was compelling, crystalline, and often entertaining.  Posner could even enliven discussion of standard of review, as when he wrote in the Nightingale Home Healthcare case that “it is an abuse of discretion not to exercise discretion.”

At this point, it might be customary to bid a respectful adieu to Richard Posner, wistfully acknowledging how much we’ll miss reading his opinions.  But Posner’s retirement announcement makes clear that we’ll keep hearing from him.  In the marketplace of ideas, Posner will continue to be one of our most active and valued participants.  For that, we are profoundly grateful.

Risperdal, an antipsychotic drug prescribed to treat serious mental conditions – schizophrenia, manic depression, and autism – allegedly causes some male users to develop abnormal breast tissue growth. Particularly when compared to the consequences of the conditions Risperdal is indicated to treat, that seems like a relatively minor risk.  It isn’t fatal.  It isn’t a long-term disability.  It doesn’t prevent one from making a living.  Thus, Risperdal litigation is a prime example of low-value cases that only exist because of the mass-tort system that has saddled the country for so long.

Thus, it is hardly surprising that Risperdal cases are on the front lines of the battle to rein in our long national mass-tort nightmare.

Just last week we learned of these two decisions:

(1) Covington v. Janssen Pharmaceuticals, Inc., 2017 WL 3433611 (E.D. Mo. Aug. 10, 2017).  Covington was one of the ridiculously misjoined multi-plaintiff complaints that mashed together residents from all over the country.  Before Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), Missouri federal courts routinely remanded these atrocities to the St. Louis litigation cesspool because there was always at least one diversity-destroying non-Missouri plaintiff, as well as one jurisdiction establishing Missouri plaintiff in the bunch.  Covington, 2017 WL 3433611, at *2 (“Historically − and especially in this district − courts generally have addressed subject matter jurisdiction first”).

Not anymore.

Covington is typical of the multi-plaintiff complaint genre – 54 plaintiffs from 26 different states.  2017 WL 3433611, at *1.  “Only one plaintiff” alleged injury from use of the drug “in the state of Missouri.  Id.  As for the rest:

The Non-Missouri plaintiffs, or those who do not have any connection to the state of Missouri, do not allege that they were prescribed Risperdal or any of its variants in Missouri, ingested the same in Missouri, or were injured in Missouri.

Id.

With BMS, the personal jurisdiction issues involving litigation tourism of this sort were largely resolved.  With no fixed “jurisdiction hierarchy,” it was now logical to take up this “more straightforward issue first. ” Id. at *2.

However, these [contrary] cases were decided before [BMS] and State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017) (en banc) [our post on Dolan is here].  These decisions make the personal jurisdiction issue in this case much easier to decide. . . .  Further, analyzing the challenge to personal jurisdiction first avoids any issues relating to fraudulent joinder.  Personal jurisdiction is now the more straightforward inquiry and should be addressed first as it is in the interests of judicial economy and expeditiousness.

Id. (citations and quotation marks omitted).

The personal jurisdiction question was easy.  There could be no general jurisdiction.  “[N]o defendant is incorporated in Missouri nor has its principal place of business in Missouri.”  Id. at *4.  ‘Nuff said.  Nor was there specific personal jurisdiction for all but one of the plaintiffs – thus removing the planted plaintiffs from the defendants’ home states.

[B]esides the Missouri plaintiff, no other plaintiff allege that they, or a child or incapacitated person whom they represent as next friend, were prescribed or purchased Risperdal in this state, suffered an injury from Risperdal in this state, or received treatment for an injury from Risperdal in this state.

Id.  The “mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug in Missouri] − and allegedly sustained the same injuries as did the nonresidents − does not allow the State to assert specific jurisdiction over the nonresidents’ claims.”  Id. at *4 (quoting BMS).  Thus 53 of the 54 plaintiffs were dismissed (without prejudice, and with the laws of their home states determining whether an unsuccessful litigation tourism jaunt tolled their statutes of limitations).  A single plaintiff’s low-value case thus remained in Missouri federal court.  Id. at *5.  It probably won’t last long, since the March 8, 2017 filing date was more than a dozen years after 2004, when that plaintiff admits discovering the supposed injury.  Id. at *6.

Plaintiffs mounted unsuccessful rearguard actions in Covington.  They sought a stay – claiming “prejudice” from the need to sort out a supposed jurisdictional morass that they, themselves, created.  That went nowhere.  Id. at *3 (“A motion to stay should not be abused by a party to dictate which motion is first addressed by the Court.”).  They also sought “jurisdictional discovery” – a fishing expedition to search for Risperdal/Missouri contacts.  Covington likewise saw that request for what it was:

Here, the plaintiffs do not plead any specific facts that support their contention that this Court has personal jurisdiction over all of the plaintiffs’ claims. Alleging that facts might be discovered during a jurisdictional discovery expedition will not allow plaintiffs to survive a 12(b)(2) motion to dismiss.

Id. at *5.

Summing up, Covington observed:

Unfortunately for the plaintiffs, [BMS], under the facts of this case, made personal jurisdiction the more straightforward issue and therefore more proper to be analyzed first.  Further, [BMS] held that forums, like Missouri in this action, do not have specific personal jurisdiction over non-resident corporations when the plaintiffs do not allege any specific connection between the forum and the specific claims at issue.

Neither this Court nor the state court in which this action was removed can exercise personal jurisdiction − whether general or specific − over the defendants for the claims brought by the 53 non-Missouri plaintiffs.

Id. at *6.

That’s one.

(2) West v. Janssen Pharmaceuticals, Inc., 2017 U.S. Dist. Lexis 124276 (Mag. M.D. Ala. Aug. 4, 2017).  West is something of the obverse of Covington.  In Covington the plaintiffs joined together in an attempt to manufacture jurisdiction for a horde of weak cases, whereas in West, jurisdiction already existed, so the plaintiffs were trying to join their weak cases together to prejudice the defendant at trial.  Once again, the court wasn’t buying the consolidation.  West involved two plaintiffs, Harper and West, treated at one point by the same prescribing physician, both alleging the same injury from the same drug.  Id. at *2, 11.

But that was as far as the similarities went.

The two plaintiffs were of much different ages; one a minor, the other not. One involved off-label use; the other not.  One involved innovator liability (being filed during the few Weeks window when that theory was allowed in Alabama); the other not.  There were various other differences as well, such as duration of use, and when the drug was prescribed (affecting the relevant warnings), and the age at which the risk allegedly manifested.  Id. at *13-15.

The dissimilarities in the Plaintiffs’ claims have be-come more apparent as discovery and expert testimony have developed.  Harper began taking Risperdal as a five or six-year old and was always a minor while taking the medication.  In contrast, West did not begin taking the medication until he was almost eighteen years old and was physiologically an adult.  The significance of this difference is highlighted by the expert causation testimony. . . .  Further, the consequence of Risperdal not being approved for pediatric use takes on a much different meaning in the two cases.

Id. at *12-13.

These differences precluded a joint trial under Fed. R. Civ. P. 20.  “The critical differences between the claims asserted by Plaintiffs outweigh the similarities between the cases, and the court finds trying the cases together would thus be inefficient and confusing for both the Court and the jury.”  Id. at *14.  The presence of an innovator liability claim in one of the cases demonstrated their legal as well as factual disparity.  Id. at *15-16.  Further, “West and Harper were prescribed multiple prescriptions, written at different times by different physicians and in different doses at different physiological stages of their lives.”  Id. at *16.

Thus, two disparate plaintiffs could not claim injury “from the same series of transactions” as required by Rule 20. Id. at *17.  No consolidation synergies for these two weak cases.

*          *          *          *

Two Risperdal cases; two different jurisdictions; two attempts by plaintiffs to manipulate joinder to the disadvantage of defendants defeated.  We look forward to similar rulings in the future.

 

 

We’re on vacation. The dog days of Summer are upon us. Time for our annual (okay – monthly) (okay- weekly) substance-less post. Our vacation began just a couple of days ago, yet we already rue its passing. Good times go by in the blink of an eye. We want to get away from the keyboard and back to the beach, so today we aim to keep this blogpost short. And that’s the point: short is good.

Short and sweet. Short and memorable. The Drug and Device Law Son, who recently earned a degree in marketing, reminds us that the best ad slogans are short. Just do it. Think. Coke is it. Think different. The same is true with art. It’s easier to watch half-hour sitcoms than hour-long dramas. We miss the early Woody Allen movies, which seldom lingered beyond 90 minutes. (We are not completely discounting the possibility that our recent obsession with short-form has something to do with bathroom breaks.). Our high school junior year English teacher told us that the two greatest American novels were Moby Dick and The Great Gatsby. We’ve read Gatsby seven or eight times. Moby Dick? Once. Shorter is more user-friendly.

In the law, too, short is good. The best bits of legal instruction ever done were the late Irving Younger’s lectures on cross-examination and evidence. You can find those lectures on YouTube. Younger announces the first rule of cross-examination by looking down to the ground, gathering his forces, then roaring, “Be brief!” Make no more than three points in your cross. Two is better. One is best of all. More than that, and you’re just flopping around. The jury will be bored and/or confused. Then they will punish you.

Think of the closing arguments you’ve seen in television shows (LA Law, Boston Legal, Goliath) or movies (To Kill a Mockingbird, The Verdict, The Client). They last under five minutes and are utterly compelling. Why don’t we see those short, snappy oral arguments in real life? We’re afraid of not making all the points we need, and not responding to all our opponent’s points. Whenever we walk out of an oral argument, what obsesses us are the arguments we did not make. But maybe we’ve got it all wrong. Maybe Irving Younger’s recommendation of brevity applies to oral arguments just as much as to cross-examinations. (It is amazing that this insight arrives as any sort of surprise to us. When we represented the United States of America in criminal cases, our best oral arguments went something like this: “No doubt your Honor has read the briefs. (Wait for a judicial nod.). Unless your Honor has any questions, the government submits on the papers.”).

Shortly before we embarked on our vacation, we attended an oral argument before the Joint Panel on Multidistrict Litigation, If you haven’t been to one of these arguments, you need to know they are unlike any other. The cases are huge but the arguments aren’t. The Panel typically affords a total of 20 minutes for argument. That’s 10 minutes per side – at most. In our case, there were multiple parties on each side, taking a variety of positions as to whether there should be an MDL at all, or who should be included, or where it should be located. Most parties were allocated one or two minutes to argue. One party, which apparently was taking the position that most interested the Panel, got a whopping four minutes.

Here’s the revelation: it worked. The arguments were all really good. One could assume the Panel had read the briefs carefully. The questioning by the judges proved as much. So the goal of argument was to update if need be, emphasize one or two crucial points, and, most important of all, answer the judges’ questions. Each and every lawyer was able to do that quite well. One plaintiff lawyer even used blow-up boards and effectively melded them into a two-minute argument. Sometimes the judges asked questions that took the speaker beyond the allocated time, but never by much. When it was over, no one felt cheated. It was a rebuke to the long-winded ness that too often prevails in our profession.

Right now we have a case set for trial in front of a judge who imposes mightily compressed time limits. The lawyers all chafe under the trial chess-clock, but there is reason to believe that the more concise the witness examinations are, the more they make an impact with the jury. The judge is probably correct that lawyers ramble on, perfectly oblivious to the law of diminishing returns. Still, we will probably grind our teeth and steam over the poor jury’s misfortune in being denied an extra hour or two of our eloquence.

There’s another part of our job that could benefit from brevity: writing. Briefs are ironically named. Lately we’ve been making a point of trying to get our briefs in under ten pages, even if the rules permit 20 or 25. We harbor a suspicion that anything longer taxes judicial patience, and perhaps even convinces the court that if we cannot make the point crisply and clearly, we don’t have much of a point. Accordingly, we put a lot of sweat equity in writing a one or two paragraph introduction that should, by itself, win the day for us. Then we will sprinkle the brief with headings and subheadings that make the merits of our position seem ineluctable. The supporting facts and law parked underneath those headings and subheadings should be just enough and no more. Anything that isn’t screamingly essential gets dropped to footnotes in the second draft. In the final draft, we will probably then delete almost all the footnotes. The life-cycle of marginal arguments and evidence is short and cruel.

The key is to know when to stop.

We read Michelle Yeary’s recent post about In re Fosamax Products Liability Litigation, ___ F.3d ___, 2017 WL 1075047 (3d Cir. March 22, 2017), with particular interest.  We were especially intrigued with the research demonstrating that the Fosamax court had departed from numerous prior Third Circuit precedents (including an en banc decision) on the question of preemption being a matter of law – as all the prior decisions had held – as opposed to a question of fact (the Fosamax result).

We note that the defendant in Fosamax shares the same view, and has itself sought en banc reconsideration.

Since Michelle cited over a dozen prior decisions, it’s highly likely that this issue will arise again. That raises the question (if the Fosamax opinion stands, which it shouldn’t) , what happens when precedential decisions of the Third Circuit are in conflict?  There certainly appears to be a direct conflict between the cases Michelle cited and the Fosamax decision.

We took a look.

In the Third Circuit, when two precedential opinions are in conflict, the earlier one – that is to say, in this instance, not Fosamax – controls.  This proposition was described in Pardini v. Allegheny Intermediate Unit, 524 F.3d 419 (3d Cir. 2008).  After referencing the same Third Circuit Internal Operating Procedure that Michelle did, Pardini held:

“This Circuit has long held that if its cases conflict, the earlier is the controlling authority and the latter is ineffective as precedents.”  United States v. Rivera, 365 F.3d 213, 213 (3d Cir. 2004); see also Holland v. New Jersey Dep’t of Corrections, 246 F.3d 267, 278 (3d Cir. 2001) (“[T]o the extent that [a case within the circuit] is read to be inconsistent with earlier case law, the earlier case law . . . controls”); O. Hommel Co. v. Ferro Corp., 659 F.2d 340, 354 (3d Cir. 1981) (“[A] panel of this court cannot overrule a prior panel precedent.  To the extent that [the later case] is inconsistent with [the earlier case, the later case] must be deemed without effect.”).

Id. at 426 (parenthetical and internal citations omitted).  As Pardini pointed out, this rule is the opposite of what happens when two statutes are irreconcilable.  Id.  But instead of the doctrine of implied repeal, the Third Circuit gives effect to its IOPs in a situation of precedential conflict – since the IOPs forbid what Fosamax sought to do, which was to ignore prior holdings of precedential Third Circuit opinions.

Pardini was followed in United States v. Joseph, 730 F.3d 336 (3d Cir. 2013), where later “statements suggesting otherwise” in Third Circuit opinions about waiver were ineffective to defeat prior precedent:

This suggestion, however, is in conflict with our earlier decisions . . . which we derive our holding [today].  Because these cases were decided earlier, the rule derived from them is controlling.

Id. at 341. Accord Goldman v. Citigroup Global Markets Inc., 834 F.3d 242, 252 (3d Cir. 2016) (a decision that “is contrary to our own prior precedent” “does not bind us on the question”); United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009) (“when our panel decisions conflict and our Court has not spoken en banc, however, the earlier decision is generally the controlling authority”); Kossler v. Crisanti, 564 F.3d 181, 194 n.8 (3d Cir. 2009) (“Even assuming arguendo that [the two opinions] are in unavoidable conflict, this Circuit has long held that if its cases conflict, the earlier is the controlling authority and the latter is ineffective as precedents”).

Indeed, we remember precisely this happening in connection with a Pennsylvania product liability issue a number of years ago. In Griggs v. BIC Corp., 981 F.2d 1429, 1433 n.6 (3d Cir. 1992), the court held that Pennsylvania did not use a “risk/utility” approach to the former (this law was all overruled in Tincher v. Omega-Flex, Inc., 104 A.3d 328 (Pa. 2014)) “threshold determination” of defect.  However, in Motter v. Everest & Jennings, Inc., 883 F.2d 1223 (3d Cir. 1989) – a case Griggs did not cite – a prior Third Circuit panel had held, “[u]nder Pennsylvania law, a trial judge must evaluate the risks of a product versus its social utility in determining whether the issue of the defective product is to be submitted to the jury.” Id. at 1227.  When confronted with both Griggs and Motter, a later Third Circuit panel resolved the conflict thusly:

to the extent that the panel’s decision [in Griggs] can be read as rejecting outright the use of a risk-utility analysis as a part of the threshold determination, it is contrary to our decision in Motter, supra, which . . . sanctioned this approach, and, therefore, carries no precedential weight.  See O. Hommel Co. v. Ferro, 659 F.2d 340, 354 (3d Cir. 1981) (“[A] panel of this court cannot overrule a prior panel precedent…. To the extent that [the later case] is inconsistent with [the earlier case, the later case] must be deemed without effect.”

Surace v. Caterpillar, Inc., 111 F.3d 1039, 1046 (3d Cir. 1997).

Thus, unless and until the determination in Fosamax that preemption is an issue of fact is confirmed by an en banc Third Circuit panel, or by an intervening decision of the United States Supreme Court, that determination should have no binding effect in future Third Circuit cases.  Third Circuit law is quite clear that where, as in Fosamax, a panel has made a ruling in conflict with prior Third Circuit decisions, the earlier decisions control.

But, as we’ve said before, strange things happen in tort preemption cases. We would have thought that the proposition that preemption was a legal question was supported equally clear precedent, but look at what happened in Fosamax.

The Louisiana Product Liability Act (“LPLA”) was enacted way back in 1988 – almost 30 years ago – to rein in the Louisiana courts’ product liability insanity (inanity?) epitomized by Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La. 1986), which had allowed strict liability without defect under something called “unreasonably dangerous per se.”  “One of the legislature’s primary purposes in enacting the LPLA was to overrule Halphen.” Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir. 1995).  To accomplish this objective, the LPLA explicitly “establishes the exclusive theories of liability for manufacturers for damage caused by their products,” and under that statute a plaintiff “may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability that is not set forth in [the LPLA].”  La. R.S. §9:2800.52.

Appellate courts applying Louisiana law have held that the legislature meant what it said. “The plaintiff’s case arises under the LPLA, which provides the exclusive theories under which a plaintiff can pursue a claim against a manufacturer for an alleged product defect.” Reynolds v. Bordelon, 172 So. 3d 607, 612 (La. 2015).  “[T]he LPLA is the exclusive remedy against manufacturers for damages resulting from a defective product.”  Aucoin v. Southern Quality Homes, LLC, 984 So. 2d 685, 691 n.8 (La. 2008) (noting exception for the peculiar doctrine of redhibition; see our post about redhibition here).  A “plaintiff’s exclusive remedy against [a manufacturer] sounds in products liability as governed by the Louisiana Products Liability Act.”  Payne v. Gardner, 56 So. 3d 229, 231 (La 2011). Accord Johnson v. Teva Pharmaceuticals USA, Inc., 758 F.3d 605, 616 (5th Cir. 2014) (“the LPLA provides [plaintiff’s] exclusive remedy”); Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012) (LPLA “provides that it is the exclusive remedy for products liability suits”); Jefferson v. Lead Industries Ass’n, Inc., 106 F.3d 1245, 1248 (5th Cir. 1997) (“Louisiana law eschews all theories of recovery in this case except those explicitly set forth in the LPLA”); Haley v. Wellington Specialty Insurance Co., 4 So. 3d 307, 311 (La. App. 2009) (“[t]he LPLA establishes the exclusive theories of liability for manufacturers for damages caused by their products”); Jenkins v. International Paper Co., 945 So. 2d 144, 147 (La. App. 2006) (“[t]he exclusive theories of liability for manufacturers for damages caused by their products are set forth in the . . . LPLA”); Slaid v. Evergreen Indemnity, Ltd., 745 So. 2d 793, 797 (La. App. 1999) (LPLA “establishes the exclusive theories of liability for manufacturers for damages caused by their products”); Ashley v. General Motors Corp., 666 So. 2d 1320, 1321-22 (La. App. 1996) (“[a] claimant may not recover from a manufacturer for damages caused by a product on the basis of any theory of recovery not set forth in the Act”).

Thus, “neither negligence, strict liability, nor breach of express warranty is any longer viable as an independent theory of recovery against a manufacturer.”  Jefferson, 106 F.3d at 1251.  “[A]llegations of negligence, fraud by misrepresentation, market share liability, breach of implied warranty of fitness and civil conspiracy fail to state a claim . . . under the LPLA.”  Id. at 1252.  Similarly, “both federal and Louisiana courts have read the Act’s exclusive remedy provision to prevent plaintiffs from bringing intentional tort claims.” Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 262 (5th Cir. 2002) (citations omitted).

The LPLA applies to all Louisiana product liability cases that accrue after the act’s effective date of September 1, 1988.  Gilboy v. American Tobacco Co., 582 So.2d 1263, 1264 (La. 1991); Brown, 52 F.3d at 530.  Like we mentioned above, that’s almost thirty years ago.

Yet, time after time, we see Louisiana plaintiffs filing – and courts dismissing – complaints chock full of non-LPLA common-law “causes of action” which since 1988 have had no possible legal validity.  E.g., Donald v. AstraZeneca Pharmaceuticals LP, 2017 WL 1079186, at *1-2 (E.D. La. March 22, 2017); Pramann v. Janssen Pharmaceuticals, 2017 WL 58469, at *2 (E.D. La. Jan. 5, 2017); Guidry v. Janssen Pharmaceuticals, Inc., 2016 WL 633673, at *3 (E.D. La. Feb. 17, 2016); Lyles v. Medtronic, Inc., 2016 WL 247584, at *3-4 (W.D. La. Jan. 20, 2016); Toups v. Synthes, Inc., 2015 WL 6738541, at *4-5 (E.D. La. Nov. 4, 2015); Hargrove v. Boston Scientific Corp., 2014 WL 4794763, at *14 (E.D. La. Sept. 24, 2014); Audrict v. Depuy Orthopaedics, Inc., 2014 WL 906562, at *1-2 (E.D. La. March 7, 2014); Corley v. Stryker Corp., 2014 WL 783066, at *1-2 (W.D. La. Feb. 25, 2014); Scianneaux v. St. Jude Medical, S.C., 961 F. Supp.2d 808, 811 (E.D. La. 2013); Gavin v. Medtronic, Inc., 2013 WL 3791612, at *15-16 (E.D. La. July 19, 2013); Aucoin v. Amneal Pharmaceuticals, LLC, 2012 WL 2990697, at *5 (E.D. La. July 20, 2012); Cooper v. Wyeth, Inc., 2010 WL 2653321, at *2 (M.D. La. June 25, 2010); Lewis v. Pfizer Pharmaceutical Co., 2010 WL 2545195, at *2 (W.D. La. June 18, 2010).  These are just the prescription medical product cases since 2010 – we have to believe that many more similar Louisiana cases exist involving other products.

Through ignorance, sloth, or just plain cussedness, plaintiffs’ lawyers in Louisiana have persisted for decades in bringing claims that have no pretense of viability under controlling state law represented by the LPLA. Isn’t it time for Rule 11?

Federal Rule of Civil Procedure 11 provides, in pertinent part, that sanctions are available when:

the claims . . . are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

Fed. R. Civ. P. 11(b)(2).  “[M]onetary sanctions can be imposed against the attorney but not the client for violations of Rule 11(b)(2).”  Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 568 n.8 (5th Cir. 2006) (citation and quotation marks omitted).  The “obligation [under Rule 11(b)(2)] must be satisfied; [its] violation . . . justifies sanctions.”  Whitehead v. Food Max of Mississippi, Inc., 332 F.3d 796, 802 (5th Cir. 2003) (en banc).  “[I]n determining compliance . . ., the standard under which an attorney is measured is an objective, not subjective, standard of reasonableness under the circumstances.”  Id. (citation and quotation marks omitted).  “[P]laintiffs violate[] Rule 11(b)(2)” when they “fil[e] complaints replete with obviously deficient claims.”  Marceaux v. Lafayette City-Parrish Consolidated Gov’t, 614 F. Appx. 705, 709 (5th Cir. 2015).

With respect to the LPLA’s statutory extinguishment of common-law causes of action, as developed above, the law is crystal clear and uniform appellate authority that common-law claims of whatever type (except redhibition) are barred stretches back decades. The statute is plain on its face, thus the “legal issues are not that complex.”  Marceaux v. Lafayette City-Parrish Consolidated Gov’t, 14 F. Supp. 3d 760, 771 (W.D. La. 2014), aff’d, 614 F. Appx. 705 (5th Cir. 2015).

To us it seems like the other side’s persistence in filing facially LPLA-barred common-law causes of action in Louisiana product liability cases is an open and shut case for Rule 11 sanctions.  Defense counsel would, of course, have to comply with the pre-filing and safe harbor provisions of Rule 11(c), so plaintiffs could withdraw those claims within 21 days, and the defendant would recover nothing.  However, using the case-law cited in this post, preparing an almost boiler-plate motion based on LPLA exclusivity (needing only party names, paragraph numbers, and the pertinent common-law claims to be filled in individually) should not be very costly – and once drafted, the motion could be used repeatedly to force dismissal of the barred claims, thus saving the expense of individualized motions to dismiss.

We DDL bloggers are happy to offer the Louisiana defense bar these tools to put an end to plaintiffs’ routine violation of the LPLA.

 

Most of the cases we defend involve claims of inadequate warnings.  What makes a warning inadequate?  Falsehood is the first thing that comes to mind.  But the Pontius Pilate question of “What is truth?” continues to vex.  We have seen very few drug or device labels uttering an affirmative misrepresentation.  More often the complaint is about what the warning did not say, not what it did say.  If John Lennon sang “Gimme Some Truth,” plaintiff lawyers sing (off-key) “gimme some more truth.”  To our ears, it sounds like “gimme some more money.”  Whatever.  Plaintiffs allege that the product label did not disclose all of the serious side effects, or did not recite them with sufficient detail and drama.  There is a hierarchy of warning inadequacy.  A warning can ‘fail’ for any of various reasons.  You pays your money and you takes your choice.  Did the warning:

  • Fail to grab attention?
  • Fail to persuade?
  • Fail to change action?

The last test is a slam dunk.  If the consumer heeded the warning, we wouldn’t be enjoying each other’s company in the courtroom.  There would be no complaint.  Probably.

The first warnings we remember seeing were on cigarette packs.  The United States was the first country to require such warnings.  Back in 1966, the sides of cigarette packs were adorned with the following: “Caution:  Cigarette smoking may be hazardous to your health.”  That warning did not include the word “warning.”  Change came a couple of years later.  In 1970, packs reminded us that the Surgeon General had determined that cigarettes were “dangerous.”  Still later, smokers were treated to rotating warnings.  Some packs warned of cancer, emphysema, heart disease, and pregnancy complications.  Some stated that cigarette smoke contains carbon monoxide.  Some suggested that quitting now could improve one’s health.  And some warned pregnant smokers of possible fetal injury, premature birth, and low birth weight.  We heard that one fellow filed a lawsuit alleging that cigarettes had caused his lung cancer, while also claiming he had not been adequately warned, because he had made a point of buying only the packs that talked about pregnancy complications.  That case proved at least two things:  (a) no matter what, some people will smoke, and (b) no matter what, some people will file silly lawsuits.

Continue Reading Warning: Lawyers May Be Hazardous To Your Health

It is bad enough that the mass tort system in our country approximates a system of jackpot justice that, if it ever does justice among the parties, does so accidentally. But its wild inefficiencies and inconsistencies also have macro adverse effects on things like consumer choice and the overall healthcare system.

A recent law review article offers further support for our scurvy view of mass torts by explaining how the long, inglorious history of lawsuits against contraceptives has hurt consumers and society. The article is by Eric Lindenfeld, is entitled “The Unintended Pregnancy Crisis: A No-Fault Fix,” and it appears in the Spring 2016 issue of the Marquette Benefits & Social Welfare Law Review.

The article begins by outlining the unintended pregnancy crisis, which is caused at least in part by dissatisfaction with current methods of contraceptives. The article argues that the less-than-robust portfolio of available contraceptives is attributable to a stagnant research and development milieu for new contraceptives. That stagnant milieu is attributable, in turn, to the frenzy of mass torts against contraceptives. The article recites the history of litigation against the birth control pill, Dalkon Shield, Norplant, as well as more recent litigations, such Yaz/Yasmin, Mirena, and Essure. Not all of those litigations were particularly successful for plaintiffs. Not all possessed any merit. For example, the article cites evidence that Norplant turned out to be safe and efficacious – but the expense of the litigation and the enormous adverse publicity drove the product from the market. The real losers were consumers.

Continue Reading Law Review Article Argues that Contraception Mass Torts Injured Consumers

A lot of companies rely on retired and otherwise former employees for information in litigation – including product liability litigation. Particularly where a product (such as a drug that’s now gone generic) has a long history, they are often the best source of knowledge about what happened years ago.  In dealing with ex-employees, however, defendants must keep in mind that, for purposes of the attorney/client privilege, discussions with ex-employees are subject to being treated much differently (and less protectively) than corporate communications with current employees.

The recent case, Newman v. Highland School District No. 203, 381 P.3d 1188 (Wash. 2016), although not involving prescription medical products, or even product liability, is a cautionary tale.  The defendant in Newman was a governmental entity, a school district.  The plaintiff alleged that he suffered a brain injury playing high school football, and that the injury occurred because the plaintiff was allegedly allowed to play in a game the day after suffering a concussion in practice.

The plaintiff in Newman didn’t sue until some three years after the injury. Id. at 1189-90.  By then, most of the coaching staff had turned over, and the individuals with the best knowledge of what had happened were employed elsewhere.  The school district’s litigation counsel contacted the ex-coaches and when they were deposed, claimed to represent them.  Id. at 1190.  Plaintiff challenged that representation as a conflict of interest and “sought discovery concerning communications between [the defendant] and the former coaches.”  Id.  The defendant resisted discovery with a claim of attorney/client privilege, and plaintiff opposed.  The defendant lost, and appealed denial of its motion for a protective order.  Id.

Continue Reading A Reminder To Be Careful With Ex-Employees And Confidential Information

We’re pleased to report the demise of a plaintiff’s firm’s attempt to punish the FDA for rejecting the firm’s attempt to force the agency to create evidence helpful to plaintiffs in litigation. The ploy began in 2012, when “a law firm that represents hundreds” of plaintiffs in prescription drug mass tort litigation “on a contingency fee basis” “filed a citizen petition with the [FDA].”  Sheller, P.C. v. U.S. Dep’t of HHS, 119 F. Supp.3d 364, 368 (E.D. Pa. 2015). Plaintiff sought agency action that it could, in turn, parade before juries in the underlying mass tort, specifically: “that the FDA immediately revoke the [relevant] indication for the . . . [d]rugs” at issue or alternatively “require that labeling for those drugs include a black box warning based on the lack of sufficient data to prove their safety.”  Id.  In addition, the plaintiff law firm sought to enlist the FDA in evading a confidentiality order (originally agreed to by the law firm) that protected discovery which the defendant in the underlying litigation had provided.  Id.

So far, so what?  While annoying, attempts of this nature to embroil the FDA in mass tort prescription medical product litigation are part of the other side’s play book.  (((Bexis))) recalls similar machinations during the Bone Screw litigation whereby the plaintiffs did everything they could (ultimately unsuccessfully) to prevent the Agency from adding to those products’ labeling previously off-label uses that had become the medical standard of care – because the Bone Screw plaintiffs’ litigation strategy was based on the procedures in question being off label.

The Bone Screw plaintiffs failed, 63 Fed. Reg. 40025-41 (FDA Jul. 27, 1998) – as did the law firm plaintiff in Sheller (119 F. Supp.3d at 368) – since the FDA normally has little patience for the junk science that the other side routinely peddles in mass tort litigation.  The plaintiff law firm in Sheller would have been off not filing the petition at all, since according to plaintiff, “the FDA decision to deny its petition “has been used as the basis to assert federal preemption and other [defense] arguments against [plaintiff’s] clients in [mass-tort] litigation.”  Id.

No kidding.  That’s the down side this sort of litigation strategy.  Attempts to involve the FDA in litigation have the risk that, if one loses, the FDA’s actions can create a positive narrative for the other side.

But plaintiffs believe in the doctrine of “heads I win; tails you lose.”

So in Sheller the plaintiff law firm attempted to gin up, from their failed strategy, a tort cause of action – not an administrative claim – against the FDA.  Talk about a bootstrap.  The plaintiff law firm was the one that involved the FDA in the first place.  The bizarre theory of liability postulated that, if the FDA wouldn’t cooperate in creating pro-plaintiff evidence/themes in the underlying litigation, that required the plaintiff law firm to work harder and spend more money to come up with something that juries might believe.  So the law firm sued the FDA to recover its purportedly increased litigation costs:

Plaintiff [claims] . . . that the FDA denial of [its] citizen petition increased [its] costs in litigating [because] . . . the defendant . . . has argued that the FDA’s denial of the Petition proves, as a matter of law, that the [drug’s] label is adequate. . . . Plaintiff argues that it must continue to expend resources in defending against that argument, and it faces the risk that a Court will accept it, lowering [plaintiff’s] contingent fee recovery.

Sheller, 119 F. Supp.3d at 369-70 (quotation marks omitted).

Continue Reading Bootstrapped Claim Against the FDA Gets the Boot