Fritz Zwicky, the tart-tongued scientist (discoverer of, among other things, supernovae and neutron stars) was wont to label his critics in the astrophysical world (of whom there were many) “spherical bastards.”  That was his shorthand for someone who was a “bastard, when looked at from any side.”
Hence the title of this post. We think that the recent decision in In re Gadolinium-Based Contrast Agents Products Liability Litigation, MDL No. 1909, slip op. (N.D. Ohio May 4, 2010), is a spherical error.  That is, it’s a decision that, no matter what direction we look at it, looks like error to us.
This goes beyond mere legal analysis, and encompasses a truly troubling disparity in the approach to defense and plaintiffs’ experts.  Leaving astrophysics for something less cosmic (but more interesting to us baseball fans) the plaintiffs’ experts got to pitch to a Kong Kingman strike zone.  E.g., Slip op. at 39-40. But when defense experts had to toe the same rubber, well it was Eddie Gaedel at the plate.  E.g., Id. at 52-53.
Read on, you’ll see what we mean.
That’s odd, because we looked at Judge Polster’s opinions to check his history was in product liability cases. We found nothing unusual in any past opinions. While Judge Polster doesn’t much like fraudulent misjoinder, he’s hardly alone in that.  He doesn’t have a long product liability track record, but he seemed okay in asbestos cases.
So we’re still scratching our heads at where this spherical error comes from.
We knew practically nothing about the Gadolinium MDL before the other day.  It had produced no opinions beside a few removal/remand decisions. Gadolinium itself is a “rare earth,” one of those oddballs that hang underneath the main periodic table, as Bexis found out about when his daughter told him she knew all the elements’ numbers by heart (it’s number 64, and, yes, she did know it).  Apparently, gadolinium’s magnetic properties make it a superior contrast agent when used in now ubiquitous resonance scans.Continue Reading Gadolinium and Spherical Error