On this date in 1896 the Dutch completed the harbor at IJmuiden.  (That capital J is not a mistake.  The I and J go together as a digraph, and they form a ligature that effectively makes up a single letter in the Dutch language.)  The IJmuiden harbor has an interesting history.  It connects Amsterdam to the North Sea via canals.  After the Germans invaded the Netherlands in 1940, the Dutch Royal family left the country from IJmuiden.  The Germans then used the IJmuiden harbor to house their torpedo boats and midget submarines.  After D-Day, the Allies bombed IJmuiden.  The American Air Force employed various weapons to penetrate the German concrete bunkers, including rocket-powered Disney bombs.  The bombs were named after war propaganda efforts by the Disney Studio.  Today IJmuiden harbor welcomes cruise ships.  It is a safe harbor.

(Yes, that is a rather long and pointless windup to get to our safe harbor case, but we are busily planning our Benelux Summer vacation, so you’ll have to excuse the travelogue/history.)

In the past we have had several opportunities to discuss state consumer protection laws containing “safe harbor” provisions that bar suits over conduct that was authorized, approved, or permitted by governmental agencies. Applying these safe harbor provisions, courts have dismissed consumer protection claims that attacked FDA-approved actions (usually labeling) after finding that the challenged conduct had the imprimatur of an agency.  One example was the DePriest case in the Arkansas Supreme Court.  The plaintiff in that case claimed that the defendant fraudulently marketed Nexium as better than older drugs that – allegedly – did essentially the same thing. The case was styled as an economic-loss-only class action.  The Arkansas Supreme Court threw the case out and we blogged about it here in 2009.


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Last November we took note of a case where a federal court sought clarification from the Arkansas Supreme Court about the scope of claims for “illegal exaction.”  Now we have the answer, and lo, it is good.

For those of you who do not commit our old posts to memory, here is a refresher on Arkansas v. Takeda Pharmaceuticals North America, Inc.,  2013 U.S. Dist. LEXIS 160593 (W.D. La. Nov. 7, 2013).  The plaintiff (named Bowerman) brought an action against Actos manufacturers/sellers to recover costs borne by Arkansas and its citizens for injuries allegedly caused by Actos.   Bowerman never purchased or used Actos, but claimed standing simply by virtue of being an Arkansas taxpayer. The plaintiff sought a refund of money spent by the state to purchase Actos and to treat the injuries.  The theory relied upon by the plaintiff is called “illegal exaction,” which arises under the Arkansas Constitution and is defined as “any exaction that is not authorized by law or is contrary to law.”  That is broad language, but the theory was typically limited to allegations that public officials misappropriated public funds.  Unfortunately, there was enough muddiness in Arkansas law to prompt the federal court to certify questions to the Arkansas Supreme Court as to whether the “illegal exaction” theory was so vast or elastic as to permit Bowerman’s case to proceed.


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“Tell your Mama, tell your Pa/I’m gonna send you back to Arkansas.”  The way Ray Charles sings those lyrics from “What’d I Say,” it sounds like a threat. What’s so terrible about ending up in the Razorback, excuse us, the “Natural” State?  How can we not adore a place that gave us Johnny Cash, Douglas MacArthur, and Maya Angelou?  Bear Bryant is justifiably famous for coaching Alabama (and, before that, Texas A&M),  but he was born in Arkansas. Because of Arkansas, we can buy really cheap poultry at Walmart.  Plus, we applaud a state legislature that officially endorsed the possessive form “Arkansas’s.”

What’s not to like?

Well, maybe you haven’t noticed, but we are defense lawyers. Arkansas courts ‘enjoy’ a reputation of serving up nasty home cooking to out-of-state corporate defendants. Certain counties in Arkansas are as friendly as parts of Southern Illinois are to class actions, mass actions, and just-plain-horrible actions.  We were delighted earlier this year when the U.S. Supreme Court held that plaintiffs cannot escape CAFA federal jurisdiction by submitting a bogus stipulation that the amount at issue was less than the $5 million jurisdictional minimum.  Standard Fire Ins. v. Knowles, 113 S. Ct. 1345 (2013).  That case came out of Arkansas, and the record was replete with recitals regarding Texarkana jurisprudence.  It made us think of Sling Blade – a movie whose star was that well-known Arkansas auteur, Billy Bob Thornton.  Put plainly, Arkansas seems to afford way too many opportunities to plaintiffs to create high-volume, high-stakes litigation that steers a case toward settlement via extortion.
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We (well, Bexis) doesn’t know all that much about Arkansas.  He’s only been there once – if driving through without stopping on I-55 to Memphis many years ago counts.  Even his massive (excessive?) million-plus word Harry Potter fanfic had only one Arkansas reference in it (about James Potter once being the lead singer for a Hogwarts band called “Black Oak Azkaban”).  Bexis did, however, vote for Bill Clinton twice (and would happily have done so in every election since – peace, prosperity, and budget surpluses look pretty good in retrospect).

But Razorback-related ignorance didn’t stop Bexis from purporting to state Arkansas law recently in our 50-state survey of hospital strict liability.  That post stated:

Arkansas

The Arkansas Supreme Court avoided the issue in Adams v. Arthur, 969 S.W.2d 598, 614 (Ark. 1998) (“we do not decide whether a hospital . . . may be strictly liable as a supplier”).  The holding in Adams – that the strict liability claims were barred by the statute of limitations applicable to malpractice claims – is suggestive that no separate cause of action for strict liability exists, but that’s not the ruling. There’s also mention of a holding rejecting hospital strict liability in Kirkendall v. Harbor Insurance Co., 698 F. Supp. 768, 770 (W.D. Ark. 1988), but it’s in a procedural history discussion.  If somebody has access to the order in Kirkendall, please send it to us.

That turned out well (no, nobody sent the missing Kirkendall order, but that hardly matters anymore).  Apparently, Bexis missed the crucial case, at least according to some recent opinions that we’ve learned about on this topic.  See Wages v. Johnson Regional Medical Center, ___ F. Supp.2d ___, 2013 WL 120888 (W.D. Ark. Jan. 9, 2013); Shepherd v. Baptist Health, ___ F. Supp.2d ___, 2012 WL 6811076 (E.D. Ark. Nov. 30, 2012); Gunn v. St. Vincent Infirmary Medical Center, 2012 WL 6811786, *1 (E.D. Ark. Nov. 29, 2012).


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As our readers certainly know, the learned intermediary rule holds that prescription medical product warnings are to be directed to prescribing physicians rather than to end user patients.  We’ve discussed the policy reasons for the rule before, and at length, most notably here and here.  Briefly, courts have adopted the learned intermediary rule because:

  • Warnings go to physicians because they are the only people who know both a particular patient’s medical history as well as the risk/benefit profile of the drug/device being prescribed.
  • Limiting warning duties to physicians makes the common law consistent with warning duties imposed by the FDA.
  • Routing prescription drug/device information through the doctor preserves the physician/patient relationship from outside interference.
  • The complicated medical terminology necessary to explain the risk/benefit profile of prescription drugs/devices is difficult for ordinary patients to understand.
  • Practical difficulties often preclude drug/device companies from direct communication with patients.

But plaintiffs don’t make direct-to-patient warning claims only against drug/device companies.  They’ll also tried to get around the learned intermediary rule by claiming that other entities in the drug/device (but mostly drug) distribution chain should have warned patients directly.  Such claims have most frequently been made against pharmacies.  Sometimes the plaintiffs are really serious about pharmacy warning claims, but more often pharmacies are sued on failure to warn theories for tactical reasons – such as adding a non-diverse (that’s a resident of the plaintiff’s home state, for you non-lawyers) defendant to prevent the case from being removed from state to federal court.

In either case, representing manufacturer defendants, we’d usually not have a pharmacist around complicating the case.  A recent decision, Kowalski v. Rose Drugs of Dardanelle, Inc., slip op.,  ___ S.W.3d ___, 2011 WL 478601 (Ark. Feb. 9, 2011), says we we’re right about that, at least in Arkansas.  Interestingly, at least from the caption, it appears that Kowalski wasn’t a product liability suit at all, but a simple negligence action.  The parties were a doctor, who prescribed a veritable cornucopia of drugs to the decedent, and the pharmacy.  Evidently, the decedent took a bunch of these drugs all at once and died from what the court called “mixed drug intoxication.”  Slip op. 2 (ordinarily we’d use the Westlaw pagination, but for some bizarre reason WL doesn’t provide any for Arkansas slips).  There’s no indication in the opinion whether the decedent made an honest mistake or was trying to get high (as we’ll see, several of these drugs were controlled substances).

Anyway, the claim against the doctor wasn’t involved in the Kowalski appeal.  The claim against the pharmacy alleged that – even though every one of the prescriptions was regular and proper on its face – the pharmacy had a duty not to fill them because, taken together, the drugs could be fatal.  The Arkansas Supreme Court, joining a substantial majority of other jurisdictions, said no.  A pharmacist has no duty to inquire behind a facially regular prescription.


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With a lot of you on the way out the door for Labor Day, here are a couple of new (at least to us) cases, that while not important enough to merit lengthy discussion, which contain something interesting (to us defense drug and device lawyers, that is).

Cheatham v. Teva Pharmaceuticals, 2010 U.S. Dist.

No, we’re not talking about the McClellan Kerr Project that turned Little Rock and Tulsa, of all places, into seaports. We’re talking consumer protection lawsuits against pharmaceutical companies (aren’t we always).

We’ve mentioned a couple of times before that a lot of consumer protection laws contain “safe harbor” provisions that bar suits over conduct that