Pennsylvanians have much to be proud of, including our history, sports, food, culture, and laws. We’ve got Valley Forge and Gettysburg. We’ve got the best (okay, after last night, maybe second-best) football team, and the best baseball and hockey teams. We might end up with the best college basketball team. We’ve got cheesesteaks and Primanti

Sometimes courts come out with rulings that surprise us, either pleasantly or unpleasantly. Sometimes courts are utterly predictable. There’s a little of both in the most recent chapter of the Iacangelo saga, which we’ve covered before here. Iacangelo v. Georgetown University, 2010 WL 4807082 (D.D.C Nov. 19, 2010). Plaintiffs brought suit on behalf of their daughter, who had been treated for arteriovenous malformation (AVM), an abnormal tangle of veins and arteries in her brain through which blood could not flow properly. The treating doctor used a method known as embolization, which involves using adhesives and other mechanisms to seal off the blood vessels feeding the AVM in the brain. In this case, the doctor used Histoacryl, a glue, and Lipiodol, a poppy seed-oil compound visible in X-rays. The FDA had not approved Histoacryl and Lipiodol for this treatment, either in combination or separately. Moreover, those substances could not be purchased from suppliers inside the United States. You might ask, “So what?” And you’d be pretty smart.

The treating doctor was named Watson, which accounts for the silly title of this post. In the old (1940s) Sherlock Holmes movies, Nigel Bruce played Dr. Watson as a dough-eye doofus, but in the original stories by Sir Arthur Conan Doyle, Watson was smart even if he lacked his buddy’s superhuman deductive powers. Dr. Watson was also something of a tough guy. He had been wounded in Afghanistan, and could handle a gun rather well. Perhaps most interestingly, in the first story, A Study in Scarlet, Conan Doyle wrote of Dr. Watson’s “experience of women which extends over many nations and three continents.” Hmmm. Maybe Jude Law’s recent portrayal of the good doctor wasn’t so far off the mark. And the words “good doctor” bring us back to the Iacangelo case.

The parties offered “wildly divergent accounts of what Dr. Watson told Ms. Kerris, her patients, and her husband.” 2010 WL 4807082 at *1. Since we’re at the summary judgment stage — for you non-lawyers, that means we don’t evaluate who’s telling the truth (although we have our suspicions) — we’ll go with plaintiffs’ allegations, including that Dr. Watson said that embolizations “had a 95% chance of success,” and that Dr. Watson never revealed that neither Histoacryl nor Lipiodol had been FDA approved.


Continue Reading No, er, Kidding, Sherlock

Philadelphia has seen more than its share of perplexing decisions. This is where the Founders gave Delaware the same number of Senators as New York. The great painter Thomas Eakins scandalized his high-strung, high society patrons by permitting female students to paint male nude models. Bad career move. Fregosi let Mitch Williams pitch to Joe Carter. Another bad career move. Somebody here thought of pouring cheez-wiz over low-grade, high-grease meat. Oddly, a good career move. And as for John Oates’s porn stache — well, the less said the better. And, yes, there have been some judicial decisions that made us scratch our cyber noggins.

But sometimes courts here get it right. That happened a couple of weeks ago in the Commonwealth’s case against Janssen over Risperdal. The court issued a nonsuit that was a model of clear thinking. The written opinion came out on Friday, and it was well worth the wait. Commonwealth v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 2181 (Phila. Ct. Comm. Pleas June 25, 2010).

Speaking of perplexing decisions, let’s depress ourselves for a moment by remembering how the Commonwealth decided to bring cases against manufacturers of atypical antipsychotics. (We’ve blogged about that case a number of times, including here.) A Texas plaintiff firm shopped the representation to the Pennsylvania Attorney General, who politely declined. (Chalk that up to prescience). Then the Governor’s office, in an unusual move, took over the case and hired the Texas firm. It was a no-bid, contingent contract. Did we mention that the Texas firm had made significant campaign contributions to the Governor? The propriety of this smelly deal is in front of the Pennsylvania Supreme Court, and we’re keeping our fingers crossed that the Justices will put an end to these shenanigans, which reek of conflicts of interest and pay-to-play politics. (Disclosure: Bexis wrote much of the WLF amicus brief on this issue, so it’s not as if we’re disinterested.)


Continue Reading A Typically Splendid Philadelphia Decision

Good luck bringing a class action in New Jersey federal court invoking the “off-label marketing” bugaboo. Last year, we had Schering-Plough Corp. v. Intron/Temodar Consumer Class Action, a putative class action we’ve previously covered. In that case, the court dismissed a third-party payor (TPP) class action for failure to state a claim where

It’s March Madness time, and the language of basketball fills the air. One expression that has moved from the basketball courts to everyday language is “no harm, no foul.” “No harm, no foul” (in tougher games, no blood, no foul) is the response to a claim that a foul should be called for

Back in April we posted about the “funky” non-manufacturer claims in Timberlake v. Synthes Spine Co., 2009 U.S. Dist. Lexis 29074 (S.D. Tex. Mar. 31, 2009).  Those claims – trying to hold people who conducted clinical trials liable in a post-approval case for alleged misconduct in how the trials were conducted – were dismissed, but

As we said last week, because it’s a Dechert case, we can’t comment directly on Clark v. Pfizer, Inc., 2010 WL 163583, slip op. (Pa. Super. Jan. 19, 2010).  However, we were sufficiently inspired by what’s in the opinion that we thought this would be a good time to put in our two cents worth about one of the theories that the Clark plaintiffs pursued:  “fraud on the market.”

As defense lawyers, we want to do our part in killing off this pernicious import from federal securities law.  So we decided to take an in-depth look at all of the the precedent that rejects application of a “fraud on the market” reliance presumption to state-law claims.

Just to make sure that everyone’s with us, briefly “fraud on the market” is a doctrine that waters down fraud (and, plaintiffs would like to say, other liability theories based on claimed misinformation) by presuming reliance in certain limited circumstances. See Basic, Inc. v. Levinson, 485 U.S. 224 (1988) (4 justice majority of 7-justice court).  It’s not a state law claim – the Supreme Court has never applied a “fraud on the market” presumption to state law even in securities cases.

The presumption arose because the Supreme Court bought a questionable proposition – that securities markets are “efficient” and “developed.” in other words, because there are so many participants in national stock markets, and those participants have such a voracious appetite for information, then anything about a particular stock is essentially instantaneously reflected in that stock’s price. Because of that (rather questionable) conclusion, any plaintiff in a securities fraud suit is “presumed” to rely on any material disinformation.

That’s the theory.  In practice, however, what “fraud on the market” is really all about is class actions – reliance is ordinarily considered an individualized issue that’s kryptonite to the supposed “superman” of class actions . Without “fraud on the market,” there probably wouldn’t be very many securities class actions. Conversely, if plaintiffs could import the “fraud on the market” presumption of reliance into non-securities contexts – such as consumer fraud/common-law fraud/warranty litigation against our drug/device clients – an invasion of class actions would follow like night follows day.


Continue Reading No State-Law Market For “Fraud On The Market”