Today is the day when we will learn whether the Governor of Louisiana will enter the 2016 presidential race.  That reminds us of Louisiana’s rather colorful collection of politicians, including Huey Long and Edwin Edwards. You probably already know that Louisiana boasts an unrivaled array of colorful characters in every field of endeavor, from chefs (Emeril Lagasse, Paul Prudhomme), sports (Peyton Manning, Pistol Pete Maravich),  music (Louis Armstrong, Dr. John – and about a million others), and philosophy (Huey Newton, Uncle Si).  Louisiana has added its own spicy flavor to the law, as well.  If you asked drug and device defense lawyers who is the single most flamboyant, unpredictable plaintiff lawyer in the land, we bet a certain lawyer from Louisiana would garner the most votes.  Pelican State courts have also given us some of the highest highs and lowest lows in product liability litigation.

Examples of both such highs and such lows reside in the recent case of Ezeb v. Sandoz Pharmaceuticals, No. 2015-C-0204 (Ct. App, 4th Cir. La June 17, 2015).  What we have in the Ezeb case is one of the very worst summary judgment rulings by a court we have ever seen, ultimately reversed by an eminently sensible appellate court decision.  Usually when we talk about a bad summary judgment decision, we are bemoaning a court’s failure to grant some virtuous defendant a ruling that dismisses some ill-conceived case.  But in Ezeb the trial court granted partial summary judgment to a plaintiff on grounds so wrong-headed as to beggar belief.

While we supply the requisite procedural background, you might want to supply appropriate background music by a Louisiana legend – perhaps the smooth stylings of Harry Connick, Jr., Gino Delafose, or Lil Wayne.  In or about 1990, the plaintiff filed a lawsuit against numerous doctors, hospitals, and pharmaceutical companies claiming that they played a role in overdosing him with a drug and thereby causing him various injuries.  He sued the medical professionals for negligence, and sued the drug manufacturer under the Louisiana Products Liability Act (LPLA) for failing to warn of the side effects of the medication.  One of the defendants was Caremark, the company that employed a treating nurse at the medical center where the plaintiff was administered the medicine. The plaintiff had alleged that the nurse played some role in the overdose.  In 2008 (so now we are 18 years after the case was initiated), Caremark filed a motion for summary judgment.  Reading between the lines of the decision, it appears that Caremark argued that there was no evidence establishing that its nurse was responsible for the dosing decision.  Caremark’s summary judgment motion was unopposed, and the court, not surprisingly, granted the motion.   All of the plaintiff’s claims against Caremark were dismissed with prejudice.


Continue Reading Louisiana Appellate Court Overturns Improper Application of “Law of the Case” Doctrine

Regular readers will recall our post, “Three Dumb Legal Theories Walk into a Bar,” about the dismissal of a suit brought by a couple of convicted drunk drivers against the maker of the breathalyzers (technically the “AlcoTest 7110”) that provided evidence used in their successful prosecution.  In addition to the prior conviction practically screaming “collateral estoppel,” we were interested in the Buckman aspects of the original opinion, Johnson v. Draeger Safety Diagnostics, Inc., 2013 WL 3788937 (D.N.J. July 19, 2013), because the plaintiffs alleged that the defendant obtained government approval of the device by means of false statements to the FDA.

As we mentioned in the prior post, the court’s “giv[ing] leave to amend takes generosity to a fault.”  Now it turns out the court thought so, too.  Our correspondent, Terry Henry of Blank Rome, has just sent us the opinion dismissing the amended complaint.  Johnson v. Draeger Safety Diagnostics, Inc., C.A. No. 13-2439 (JLL), slip op. (D.N.J. July 19, 2013).

If you’re a fan of unusual forms of collateral estoppel, then Johnson II is for you.  The opinion is an application of the “Rooker-Feldman” doctrine, which has four elements:

(1) the federal plaintiff lost in state court;

(2) the plaintiff complains of injuries caused by the state-court judgments;

(3) those judgments were rendered before the federal suit was filed; and

(4) the plaintiff is inviting the district court to review and reject the state judgments.

Johnson II, slip op. at 6 (citation and quotation marks omitted).

Now, we’re not really interested in collateral estoppel of this sort – it rarely comes up in our cases – so to make a long story short, these plaintiffs had pleaded guilty.  As for the other elements, the reliability of this particular breathalyzer had already been litigated to a favorable (to the device) conclusion in a prior case that went all the way to the New Jersey Supreme Court earlier in 2013, in a case called Chun.  Indeed, these plaintiffs went so far as to accuse an executive of the defendant of testifying falsely in the Chun matter.  Slip op. at 8.  Obviously, this action was a collateral attack on the Chun decision, and so the court held, declining subject matter jurisdiction under Rooker-Feldman.  Id. at 10.


Continue Reading Breaking News – A TwoFer

We came to you a few weeks ago on the topic of collateral estoppel.  Not the most exciting doctrine as far as equitable doctrines go, but collateral estoppel has gained greater currency in drug and medical device litigation because of the nature of the mass proceedings in which we often find ourselves.

Whether at the state or federal level, litigation begets more litigation, and where there are significant inventories of cases involving similar products, there will be one case after another.  Throw into the mix the trend of selecting test cases and setting “bellwether” trials, and plaintiffs inevitably will argue that a result in their favor in one case should legally bind the defendant in the next.  Never mind that
neither plaintiffs nor courts would ever tolerate the reverse – a defendant binding future plaintiffs to defense wins and precluding them from presenting their cases.  Due process would not permit that so-called “non-mutual” collateral estoppel against plaintiffs who were not parties to the first proceeding, yet when unrelated plaintiffs assert collateral estoppel against defendants, they seem to get a hearing.  Before we said this reminds us of “head I win, tails you lose.”  Perhaps more precisely we should say “heads you lose, tails I get to try again.”

Fortunately for the sake of justice, plaintiffs almost never win at this tactic, and defendants almost always have a fair opportunity to defend their products.

Continue Reading Offensive Collateral Estoppel Foiled Again

You all will recall the following hypothetical from law school:  A train wreck occurs in which 50 passengers are injured.  If the first plaintiff sues the train company for negligence and wins, then later plaintiffs theoretically can use that finding to preclude the company from contesting negligence in later lawsuits.  But if the first plaintiff sues and loses, the other plaintiffs are not bound because they were not parties to the first plaintiff’s suit. We see that as sort of a “heads I win, tails you lose” proposition.  If the first plaintiff sues and loses, as do the next 24 plaintiffs, what happens if plaintiff number 26 sues and wins?  Should the remaining injured passengers be allowed to preclude the train company from contesting its negligence?  Granted, the negligence issue has been determined in a lawsuit in which the train company had every incentive to defend itself, but should an equitable doctrine like collateral estoppel (aka issue preclusion) lend itself to a result that seems so unfair?

This hypothetical, first posed by Professor Brainerd Currie in 1957, piques the interest of attorneys in our line of work because our clients get sued time and again by different plaintiffs who claim to have been injured by the same or similar products. Sometimes hundreds of plaintiffs, or even thousands, and as much as we believe in our clients and their life-saving and life-improving innovations, we sometimes get results we do not want. There are infinite numbers of reasons why that might happen, and when it does, some forward-thinking attorney always asks, “Can this result be used to estop us in future cases?”

The fact is that product manufacturers are rarely precluded from defending their products in litigation. Years ago we represented the plaintiff (yes, the plaintiff) in a product liability lawsuit involving industrial-grade plastic.  A jury in a prior lawsuit had found the same product to be defective in design, so it occurred to us forward-thinking attorneys that we ought to be able to exploit that earlier judgment and preclude the manufacturer from contesting that its plastic was defective.

We were somewhat surprised that our research turned up very slim results, and that collateral estoppel almost never operates to preclude re-litigation of product defect in successive product liability claims.  Generally speaking, we like the concept of collateral estoppel (and its jurisprudential cousin res judicata) when properly applied because litigation should provide a semblance of finality.  But it seems that the ghost of Professor Currie hovers over the shoulders modern day jurists to remind them that equity should not resemble a roulette wheel, and one plaintiff’s success should not relieve others of their burdens of proof.


Continue Reading Play It Again: The Limits of Collateral Estoppel

One of the many methods of aggregating litigation is an action filed by a governmental unit acting as “parens patriae.”  See Principles of the Law of Aggregate Litigation §1.02 & Reporters notes to comment b(1)(B) (ALI 2010).  Such actions, in which a “[g]overnmental actor” has “authority to speak for citizens on matters of

We really don’t like it when state aspiring governors (that’s what “AG” stands for, isn’t it?) come after our clients − especially when our clients were merely exercising their First Amendment rights to make truthful statements about this or that off-label use.  But then, the state AGs never cared what we thought before, so why

We’re involved in HT litigation, so we can’t comment much, but readers will want to look at Rick v. Wyeth, Inc., ___ F.3d ___, Nos. 3354, et al., slip op. (8th Cir. Oct. 25, 2011).  Trying to take advantage of Minnesota’s notoriously long statute of limitations, the plaintiffs, who had originally filed in

According to the Supreme Court’s website, the current term is due to end on June 27.  With no fewer than six cases of interest still undecided after today’s decision in Smith v. Bayer Corp., No. 09–1205 (U.S. June 16, 2011), it promises to be an interesting couple of weeks.  There are only three

Just a quickie post about today’s Supreme Court oral argument in Smith v. Bayer, a copy of the transcript here.  This is the case where the, once the Baycol MDL had denied class certification, the plaintiffs tried for certification of an identical class in West Virginia state court.

In the interim, as we

This just in:  The West Virginia Supreme Court of Appeals today reversed that scary trial court decision that held a drug manufacturer to be bound by, and incapable of disputing, FDA-DDMAC “false and misleading” violation claims in warning letters.  Here’s a copy of the opinion, encaptioned, West Virginia v. Johnson & Johnson, No. 35500,