Happy birthday, Aubrey Drake Graham.  Most people know Mr. Graham strictly by his middle name.  The Canadian rapper Drake has carved out a hugely successful career for himself.  He sells lots and lots of records – or whatever it is that they sell in the music business these days.  Surprise: Drake’s music isn’t exactly our

This past weekend, we paid a return visit to Cleveland, the home of our best law school friend, who braved the (figurative) waters of New Haven with us so many years ago.  In deference to the Drug and Device Law Traveling Companion, we visited the Pro Football Hall of Fame.  In contrast to the stunning rotunda of our beloved Country Music Hall of Fame, the Football Hall stacks all of the inductees’ busts against a single wall – sort of a warehouse of disembodied heads.  We felt like we were in the parts department of Dr. Frankenstein’s laboratory.  But we enjoyed the visit and paid fond homage to the bust of Tommy McDonald.  We also visited the Rock and Roll Hall of Fame, which we had seen before and which we continue to find both impressive and tons of fun.  This time, we lingered at the “One-Hit Wonders” display, commemorating so many recording artists who disappeared after just a bit of noise, never to be heard from again.

The plaintiff in today’s case followed the same trajectory, albeit after his apparently meritless case languished on an MDL docket for eight years.  In Wilhelm v. Pfizer, Inc. 2016 U.S. Dist. LEXIS 127269 (D. Nev. Sept. 19, 2016), the complaint was originally filed in 2006 in the District of Nevada by fourteen plaintiffs alleging that the defendant’s product caused suicidal ideations.  The JPML transferred the case to the Neurontin MDL after it was filed, and remanded it back to the transferor court in July 2013 with three plaintiffs remaining.   One month later, the court permitted counsel for these plaintiffs to withdraw.  Two of the plaintiffs dropped out, leaving a single plaintiff, proceeding pro se. In February 2014, the defendant moved for summary judgment, arguing that the plaintiff could not produce any expert evidence proving that the defendant’s product caused his injuries.  The plaintiff filed for Chapter 7 bankruptcy in June 2014.  He never disclosed his product liability lawsuit in the course of his bankruptcy proceedings.


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We stand at the midpoint of our journey around the Sun.  182 days precede us this year, and 182 remain before 2013 concludes.  July 2 is a big day historically, and not just because it is the day when Larry David and Lindsay Lohan entered this world and Vladimir Nabokov left it.  Exactly 237 years ago in Philly our Founders approved the Declaration of Independence. There is a good argument that we should celebrate the Second of July rather than the Fourth, when the Declaration was publicized. Zounds, why not celebrate both? Who can get enough barbecues and fireworks?

150 years ago on this date Joshua Chamberlain and his Maine boys held Little Roundtop and prevented day 2 of the Battle of Gettysburg from turning into a very bad day for the Union.  (Bexis is vacationing Down East and reports that the weather is miserable there and that it is no wonder the Maine contingent took their chances at Gettysburg.)  As we sweat in this soupy weather, barely able to rouse ourselves from terminal torpor, it seems a good time to reassess where we are, to count our blessings, to acknowledge the bravery and sacrifice of our predecessors, to laugh at the faults of others and grieve at our own … and to talk once again about the Aredia-Zometa litigation.

Last week was eventful in the Aredia-Zometa litigation.  After a two-week trial, a jury in the Eastern District of California returned a defense verdict in Hill v. Novartis Pharmaceuticals Corp., No. 1:06-cv-00939-JSR-SAB (E.D. Cal. June 26, 2013). Any drug and device trial is likely to catch our attention, but this one was especially interesting because it was presided over by Judge Rakoff, who hails from the Southern District of New York and was sitting by special designation.  For those of you who follow securities and other financial litigation, you know that Judge Rakoff is brilliant, opinionated, and strong-willed.  If he does not like a proposed settlement, he will not approve it.   We remember going to a RICO conference over 20 years ago where Rakoff was one of the two MCs. He was then at the Mudge Rose firm, where Richard Nixon practiced law once upon a time.  It was clear that Rakoff was lightning smart.  After one session, we went up and chatted with him about some of the intricacies of the much-overused RICO statute.  Rakoff was helpful.  He was nice.


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First and foremost here at the Drug and Device Law Blog, we like good, strong defense decisions.  If those decisions contain lessons (or reminders) for our everyday practice – so much the better.  That’s why we’ve blogged about cases that let us remind you to check publicly available information about plaintiffs, make sure the plaintiff was alive when she filed suit, and search bankruptcy filings to see if plaintiff disclosed her lawsuit.  We blogged about a bankruptcy discharge case a few months ago out of state court in Massachusetts.  So, when we stumbled across a recent federal court decision on the issue, we thought we’d pass it along and take a look to see what else was going on in federal court on this issue.

The case that prompted this post is a holdout from the Vioxx MDL – In re Vioxx Products Liability Litigation, 2012 WL 4097200 (E.D. La. Sep. 17, 2012).  Plaintiff Sandra Elliott filed her Vioxx lawsuit in 2006 and later filed for bankruptcy in 2009, but did not disclose to the trustee her claims against Merck.  Id. at *1.  While the bankruptcy was still pending, Merck moved for summary judgment on the grounds of judicial estoppel.  Id.  The fact that the bankruptcy was still pending is one of the things that caught our eye about this case.  We’re sure you won’t be surprised to learn that plaintiff’s primary argument in opposition to the motion to dismiss was – I’ll just go back and amend my bankruptcy petition and then no harm, no foul.  The court didn’t see it that way.

There are three requirements for judicial estoppel to apply: “(1) [T]he party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the non-disclosure must not have been inadvertent.”  Id. at *2 (citation omitted).   It is the second two factors which are most often at issue in the bankruptcy non-disclosure context.

Let’s start with number 3.  We can imagine that almost every plaintiff when faced with this type of motion to dismiss argues inadvertence.  The definition of an inadvertent non-disclosure can vary from court to court.  In the Fifth Circuit “[a] nondisclosure is considered inadvertent only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment.”  Id. (emphasis added and citation omitted).  Knowledge and/or motive give “rise to an inference of intent sufficient to satisfy the [bad faith] requirements of judicial estoppel.”  In re Coastal Plains, Inc., 179 F.3d 197, 210 (5th Cir.1999).  The Third, Eighth, Tenth, and Eleventh Circuits have also adopted this reasoning.   See, e.g., Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1157 (10th Cir.2007); Stallings v. Hussmann Corp., 447 F.3d 1041, 1048 (8th Cir.2006); Barger v. City of Cartersville, Ga., 348 F.3d 1289, 1294 (11th Cir.2003); Ryan Operations G.P. v. Santiam–Midwest Lumber Co., 81 F.3d 355, 363 (3d Cir.1996).


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Not too long ago we advised that it’s a good idea to check whether your plaintiffs were actually alive when they filed their suits.  We’d like to amend that to add that it’s also a good idea to check whether your plaintiffs were financially alive as well.

By that, we mean plaintiffs should be checked