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”