Photo of Bexis

We’ve been pondering what to do with the latest 70+ page whopper from the Philadelphia Court of Common Pleas for a couple of weeks.  All the while Maya v. Benefit Risk Management, 2012 Phila. Ct. Com. Pl. Lexis 449 (Pa. C.P. Philadelphia Co. Dec. 31, 2012) (also at 2013 WL 663158 – but essentially useless due to lack of internal pagination), has been sitting around, begging for us to take it on.

What would it take to make Maya better?

Well, just about everything would have to be substituted.  If that happened the $10 million plaintiff’s verdict in Maya would be toast….  Which reminds of the classic substitution scene from the movie Five Easy Pieces (hence the title of the post).  That was pretty brutal, but so is the opinion in Maya.  We’ll try to be less brutal in our analysis than Jack Nicholson was before he became a Lakers fan.  But without any substitutions – well, ATRA might want to think again before letting the Philadelphia court system off the hook.

A lot of things could be said about the Maya decision – since it touches on so many issues.  But we’ll limit ourselves to five – the five theses in Maya that are just plain wrong.

Waiver for Preserving Too Many Issues

Maya was another high-stakes SJS/TENS case.  This medical condition is terrible, but it is an example of what used to be called an “idiosyncratic reaction.”  Most doctors – at least those not serving as plaintiffs’ experts – admit that they don’t know what triggers the disease.  It’s been blamed on just about every drug (prescription or non-prescription) imaginable, but it could just as well be a reaction to something else in the environment, something that’s ordinarily non-bioreactive, such as plastic.  But plastic manufacturers don’t have to keep records of adverse reactions.  Drug companies do, and those reactions duly get listed on product labeling – whether there’s causation or not.Continue Reading Five Uneasy Theses

Photo of John Sullivan
One of the remand courts in the Aredia/Zometa litigation recently issued a decision on various motions in limine.  See Brown v. Novartis Pharmaceuticals Corp., 2012 U.S. Dist. LEXIS 104985 (E.D.N.C. July 27, 2012).  Here’s the rundown of the “good,” the “not-so-good,” and the “it depends.”
The good:
·                     Post-injury label changes: The court

Photo of Michelle Yeary
            When last we wrote of punitive damages in the Aredia/Zometa litigation, we predicted the parties were entangled in a dance that would involve back and forth on both sides and that wasn’t likely to end anytime soon.  See prior post.   We were right on both accounts. 
Then we brought you a favorable decision

Photo of Bexis

On November 18, 2011, the defense scored a victory in the New Jersey Zometa/Aredia mass tort program, when the court granted a motion to apply New Jersey punitive damages law.  The plaintiff was a Virginia litigation tourist who brought suit in New Jersey state court despite his treatment having nothing to do with the state. 

Photo of Michelle Yeary
            It’s August – days are getting shorter, pencils and notebooks have replaced beach balls and suntan lotion in the stores, football is encroaching on baseball.  Now, think of where you would like to be as the twilight of summer approaches.  At a barbecue with fresh Jersey corn and tomatoes?  Walking along the beach in

Photo of Bexis

We were quite concerned a couple of years back when, in the wake of the West Virginia Supreme Court’s horrible decision in State ex rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899 (W. Va. 2007), rejecting the learned intermediary rule, a federal district court in that state undertook to apply West Virginia

It’s cold here in Philadelphia and in much of the country. Really cold, your-car-makes-weird-noises-you-start-it cold. When it’s this cold up here, people start fantasizing about moving to Florida and leaving their snow shovels, rock salt, hats, coats, gloves, and all that behind.
Is there a point to this about drug and device law, you may

Photo of Bexis

Routine dismissals of pharma cases based on the statute of limitations don’t get on our radar screen.  They’re too state and fact specific.  But the statute-based dismissal in Lewandowski v. Bayer, 2010 U.S. Dist. Lexis 128951 (S.D. Fla. Nov. 15, 2010), a case arising in the Trasylol MDL, has several features that take it out

Photo of Stephen McConnell

Judge Posner’s opinions are usually right and, even more usually, brilliant. It’s no surprise we’ve blogged about them so often. (For example, here, here, and here.) We could probably count the posts, but we’ll go with the “one, two, and many” formulation and acknowledge that today is the “many-th” time we’ve addressed a fan letter to Chicago. On Friday, we briefly posted on the case of Robinson v. McNeil Consumer Healthcare, No. 09-4011, Slip Op. (7th Cir. Aug. 11, 2010), where, in an opinion penned by Judge Posner, the Seventh Circuit held that the FDA’s decision not to add a warning to Children’s Motrin was preemptive. Because it’s a Posner opinion, it’s laden with other goodies.
Let’s begin with the facts, which are unspeakably sad. Mrs. Robinson bought Children’s Motrin for her child. Before she did so, she read the label, which said, among other things, “Stop and see a doctor if an allergic reaction occurs.” Several months later, Mrs. Robinson took the Children’s Motrin for her headache. When she awoke the next morning, she noticed a rash on her chest. That night, she took more of the Motrin. She did not reread the warnings. The next morning she went to her doctor, who gave her allergy medications. She told him she had taken Children’s Motrin; he did not react. The rash got worse, not better, sprouting blisters. That night, Mrs. Robinson took more of the Motrin, again without reading the warnings. The next morning, with “her condition deteriorating rapidly,” she went back to her doctor. Robinson, Slip Op. at 3. This time, her doctor diagnosed her with a severe form of Stevens-Johnson syndrome (specifically, “SJS/TEN”), a rare, life-threatening disease. Mrs. Robinson survived, “but sixty percent of her skin sloughed off, and she lost the vision in one eye and has only limited vision in the other … she is expected to go blind eventually.” Id. at 4.
Posner understates things when he says these are “unhappy facts.” Id. It would be hard to find anyone — including any juror — who wouldn’t feel enormous sympathy for Mrs. Robinson. At trial in a case like this, a defense lawyer needs to model for the jury how to express sympathy while still supporting a defense verdict. In fact, it seems that the defense counsel in this case managed to do exactly that, though one expression of sympathy created a thorny issue on appeal. More on that later.Continue Reading There’ll Always Be Posner — Part “Many”