This is a relatively short post because a(nother) snowstorm has closed the ReedSmith Philly office and we’re working remotely. Over the week or so we’ve been sent a couple of articles that we think could be useful to defense counsel, so we’re passing them along today.
The first is a law review article, “The Odd
Happy New Year from all of us here at DDLaw! And happy old year, too. Was it a happy old year? In many ways it was, and it’s the purpose of this post, to list some of our top reasons why. So here are our choices for the best prescription medical product liability decisions of
Today’s post contains our annual list of those court decisions concerning prescription drugs and medical devices that are so bad and ugly that they leave us talking to ourselves – or even to the furniture. With the thirteenth year of the millennium drawing to a close, these opinions demonstrate that – yes, indeed –
For some reason, we recently found ourselves comparing our favorite defenses to our favorite rock bands. Preemption, of course, would be The Beatles, and Daubert/Frye the Rolling Stones. The learned intermediary rule could be Bob Dylan (I know, we’re showing our age, here). Comment k could correspond to Led Zeppelin, and state of the art might be The Who.
And it seems that, for each of these bands, there’s a song we really like that gets slighted (in our opinion) when it comes to air time on classic rock stations. For The Beatles that would be It’s All Too Much. For the Rolling Stones, when you discount those songs generally considered too raunchy for mainstream radio (one from Beggars Banquet, one from Let It Bleed and one from Goats Head Soup, you can guess which ones), we’d say the disrespected Stones song we like most is Child of the Moon. For Bob Dylan, we almost never hear Desolation Row on the radio (and thanks to Zimmerman’s late-in-life conversion to copyright trolldom, you won’t find a decent studio version on YouTube, either). For Zep, we’d award the buried treasure award to Immigrant Song. And finally, for The Who, we’ve always been peculiarly partial to the Punk and the Godfather.
Somewhat similarly disrespected as a defense to warning causation has been the prescriber’s failure to read the relevant warnings. One of the benefits of the learned intermediary rule is that it replaces self-interested plaintiffs with highly trained medical professionals when it comes to warnings, and in particular with respect to warning causation. While a plaintiff with dollar signs in his/her eyes will typically testify to whatever is necessary to establish warning causation (“Oh, yes, if I had only known about that risk, I would have rejected my oncologist’s recommendation and never taken the drug.”), medical doctors are most interested in the effective treatment of their patients, and thus typically tell it like it is. The truth often is that, for one reason or another, the prescribing physician did not rely on the particular warning in question, and thus a different one wouldn’t have made any difference.
There are a number of fact patterns that lead to physician non-reliance, the golden boy of the bunch being when a doctor (a trained professional, after all) already knew about the risk in question and thus did not need to be warned about it. Another commonly seen warning causation defense is when the doctor testifies that none of the plaintiff’s warning sophistry matters, s/he would still treat the plaintiff the same way today.Continue Reading Don’t Forget About A Prescribing Physician’s Failure To Read Warnings
Several of us (the Reed Smith side, obviously) recently attended the firm partners’ retreat. All our brainstorming about how to improve client service started us thinking about the blog. In some ways, legal blogging’s not that much different than other legal services – we just don’t get paid for it, at least not directly. Our intended readership follows us, to the extent they do, with the expectation (realistic, we hope) of learning things that they can use to help defeat drug/device product liability litigation. That brings value to the industry (and indirectly to various clients), since a win anywhere helps defendants everywhere.
So where can we bring, or at least preserve, value to the industry/our clients through the blog? We thought about MDLs. Defendants spend a great deal of money slogging their way through MDLs, and where possible we’d like to preserve whatever good we get out of them. Depending on judicial predilection (Judge Bechtle didn’t; Judge Weinstein does), MDLs often include summary judgment and (less frequently) other dispositive motions concerning individuals or groups of plaintiffs. Some of the motions are based on Daubert, but if not, they’re usually based on state law – learned intermediary, statute of limitations, other issues.
So what?
Here’s what. State-law-based rulings in MDLs involve judges in one jurisdiction, like Judge Weinstein in New York in Zyprexa, deciding issues presented by other states’ laws – say whether a failure to warn was causal under Louisiana law. That’s fine for the MDL, but what about the rest of us? Also, what about anybody after an MDL is (at long last) concluded? What legal researcher would think to look in New York for a case possibly presenting a relevant fact pattern for a Louisiana motion?
Not too many.
We speak from experience. When we’re putting together a summary judgment motion in some other case, whether one-off or a different MDL, where do we look for supportive precedent? Why we look in the logical place, of course – the decisions of that particular state’s courts and federal decisions in the district and appellate courts responsible for that state. That’s where we get the most bang for our research bucks. That’s doing our clients’ work in the most efficient manner.
So we don’t look in Florida, or New York, or Pennsylvania if we’re working on a case under Texas law. It’s simply not cost effective, given the number of other jurisdictions and the relatively low likelihood of success. Sometimes we run across something significant through checking lists of citations (colloquially known as “Shepardizing”) to relevant cases, but we’re not systematic.
But just because it’s not worthwhile in a given case to conduct such broader searches doesn’t mean that what’s out there isn’t worth knowing about. In Zyprexa alone, Judge Weinstein granted dozens of summary judgments applying the law of at least half the states of the union. Those cases are useful precedent – if defense counsel can locate them in a way that doesn’t waste the client’s money.
That’s where we come in. We’re bloggers. We’re not getting paid for this. We don’t have to be cost effective in the narrow sense that lawyers working for client X or client Y have to be. We just have to do the research – and we have.
What follows will be incredibly boring to many of you, but we hope equally useful. We’ve collected individual summary judgment decisions (unless we specify a different procedural posture) in various MDLs – no matter what jurisdiction they were in. We’ve organized them by state, omitting decisions made by MDL courts applying their own forum’s law, since those cases would be found by searching “the usual suspects.” That means, if you’re researching Mississippi law, just look under “Mississippi law cases” in the list below, and there are the cases, no matter what MDL court decided them.
Caveat #1: As we’ve said many times, we don’t do the other side’s research for them. These lists include only cases where the defendant won everything (or almost everything) under a particular state’s law. As far as adverse MDL precedent is concerned, we make no representations whatsoever. Yeah, we saw some bad cases while doing this research. We’ve intentionally omitted them.
Caveat #2. We expect this list is under-inclusive. Why? To keep the searches manageable, we reviewed only cases where “product liability” appeared in the name of the case (the usual way that MDLs are named), and “[insert state name] law” appeared somewhere in the body of the opinion. That means we searched “Alabama law,” not just “Alabama.” Otherwise, we’d have gotten hits for every MDL case where one of the (often scores) of attorneys was from Alabama. Still, we think our results are a lot better than nothing. We’re not aware of this kind of list having been compiled anywhere – at least anywhere that’s public.
Caveat #3. We’ve only included issues that we could see possibly arising in drug and device product liability litigation. If an MDL decision was favorable to the defendant only on, say, asbestos exposure product identification (the most common example by far), we have not included it.
Caveat #4. We have not included decisions that were driven by federal issues, such as Daubert or preemption. Federal issues involve different research considerations, so that decisions from MDLs in different circuits are less useful.
So here goes. For the first time anywhere, pro-defense product liability MDL decisions organized by the jurisdiction of the law being applied.Continue Reading MDL Precedent Rescue – Big List
We hope all our readers had an excellent holiday-of-your-choice. We did, and we’re back just in time for our favorite (and nearly last) post of the year, our choices for the best prescription medical product liability decisions of 2012. This time, we have to admit, there’s no obvious winner, since the year passed without a
Do we have to? That depends on whether we mean “must” or should.” There’s relatively little that’s really a “must,” but quite a bit that’s a strong “should.” So yes, we have to. It’s that time of year again, and we’re looking back over the past twelve months for the decisions that, in this instance,
Happy Christmas/Hanukkah/solstice and Merry New Year to all our readers. May your 2012 be filled with winning arguments, TwIqbal dismissals, and summary judgments. There’s not much of 2011 left now, although we’d be overjoyed for one or more last-minute decisions to come down and warrant a change to the list that follows.
What list is
Here we go again. At the end of every year, we look back over the past twelve months – the highs and the lows – the thrill of victory and the agony of defeat. We always start with the agony, however, and this year’s no exception. Despite our best efforts, our side didn’t win everything
The last couple days’ dialogue with our subscribers suggests that the blog’s email outage was uneven. Some subscribers may have lost email transmission of our post for more than a month. We’ve already apologized, but we think we should do more. Here’s a list of what we posted about – with links – between June