Today’s post is another guest post from friend of the Blog Kevin Hara, of Reed Smith, who channels our resident movie critic in this wide-ranging discussion of pleading and procedural weirdness. As always with our guest posts, the author deserves 100% of the credit, and any blame, for what follows.
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This post is from the non-Reed Smith side of the blog.
Last week when we posted about some motion in limine rulings coming out of the IVC Filters MDL, most of our blogging team were enjoying a calm week after being hit by two nasty Nor’easters. We were turning our thoughts to spring. Birds chirping,
Here in Philadelphia, less than a week before the first day of Spring, it is sunny and calm, albeit a bit chilly. Not so last week, when we were hit with the second Nor’easter in less than a week. As much as sixteen inches of snow fell in some suburbs, and thousands of people, some
In the annals of history, June 6 gets prime billing. That’s understandable, because the successful Normandy landings on D-Day (June 6, 1944), probably saved Western Civilization. (Or maybe that heroic endeavor simply preserved liberal democracy for another 75 years, now that we seem encircled by fanatics both home and abroad who view the Enlightenment
Sometimes it takes a lot of words to say something. The Iliad. War and Peace. SCOTUS’s Obergfell decision. But sometimes, in just a few words, it is possible to create an image, or stir a memory, or underscore a point. Call me Ishmael. I have a dream. A rose by any other name would smell as sweet. And, apropos of sweet-smelling roses, today’s very short Georgia Supreme Court decision makes the point that expert opinions are expert opinions even when clothed as fact testimony, and must be excluded from evidence unless they meet the relevant admissibility standards. Yugueros v. Robles, 2016 WL 6407314 (Ga. Oct. 31, 2016), is not a drug or device decision. It is a medical malpractice case, but its holding is relevant for anyone who deals with opposing experts. Which we do, regularly and painfully. (You can see a recent post on a similar issue here.)
In Yugueros, the appellant performed extensive cosmetic surgery on the appellee’s decedent (his wife). Subsequently, Mrs. Robles went to the emergency room suffering from severe abdominal pain. After an abdominal x-ray, which the E.R. doctor determined to be “unremarkable,” Mrs. Robles was discharged. A radiologist who later saw the abdominal film could not rule out the presence of free air in the abdomen, which “could be a normal post-operative condition or could indicate a more serious issue.” Yugueros, 2016 WL 6407314 at *1. The radiologist recommended a CT scan and posted his opinion in Mrs. Robles’s electronic medical record.
Usually, when res judicata comes up in our cases, we are trying to fend it off. Luckily, non-mutual offensive res judicata is rarely recognized, so plaintiffs usually fail when trying to preclude the drug or device manufacturer from putting up a full defense based on a prior ruling or verdict in a different case. Occasionally, in serial product liability litigation, we find a plaintiff trying to sue over the same injury twice, but that rarely requires motions, let alone motions based on res judicata. Today, however, we are discussing a Georgia state court case where a drug company’s settlement with Georgia and other governmental entities in a longstanding federal case precluded eight Georgians from suing the same company on behalf of Georgia. Were we to channel a fellow blogger, we might draw some parallel to “The Walking Dead,” which is filmed in Georgia and had been based in Georgia until season 5 (when the gang headed up to Virginia). We might say something about how related cases that pop up after an adjudication on the merits are like “walkers” and have to be disposed of accordingly. We might inject some spoilers by mentioning which main character got shot in the most recent episode and which main character is rumored to die in the next episode. We might even connect these events to an earlier failure to resolve an earlier dispute more definitively. Instead, we will just stick to the case.
Jordan v. State, No. A15A1733, 2016 Ga. App. LEXIS 176 (Ga. App. Mar. 23, 2016), does not have the drug manufacturer as a party to the appeal because it was the State of Georgia that filed and won the motion to dismiss below (although treated as a motion for summary judgment on appeal). This procedural quirk flows from the nature of qui tam litigation. In 2004, a relator named Starr filed a suit in the Eastern District of Pennsylvania against her former employer claiming that its marketing of a prescription anti-psychotic for off-label uses created liability under various statutes, including the federal False Claims Act for reimbursement by various governmental entities. (Some of this background is presented in Jordan, but some details are added from public information.) Over time, other relators filed similar cases, the United States intervened, and Starr’s complaint was amended to include claims under the later-enacted Georgia False Medicaid Claims Act (GFMCA) and various similar state statutes. In late 2013, there was a massive settlement of criminal and civil cases between the manufacturer, the United States, and a number of states—including Georgia—resulting in, among other things, payment of millions of dollars to Georgia and a dismissal with prejudice of the Starr case.
We’re pleased to report that good things continue to happen in Atlantic County product liability proceedings following recent judicial turnover. On February 19, 2016, the Reed Smith Bard/Davol defense team scored a hat trick – going three for three on summary judgments in New Jersey hernia mesh litigation. The three decisions are: Goodson v. C.R. Bard, Inc., 2016 WL 743478 (N.J. Super. L.D. Feb. 19, 2016); Utech v. C.R. Bard, Inc., 2016 WL 743477 (N.J. Super. L.D. Feb. 19, 2016); and Yakich v. C.R. Bard, Inc., 2016 WL 743476 (N.J. Super. L.D. Feb. 19, 2016).
A bit of background. These three are not mass tort cases. They are examples of what happens when there is indiscriminate plaintiff-side advertising. People call up these 800 numbers because they had “mesh” implanted. They don’t have the targeted product but – what the hey? – it’s mesh and some of the raw materials are the same, so rather than turn away a potential plaintiff, the same attorneys file one-off cases against virtually every mesh product that exists, even if (as is true here) the particular product has been the medical standard of care for the relevant surgical procedure for decades.
As one might expect with pattern litigation, these three lawsuits, and thus these three opinions, look a lot alike. So we’ll concentrate on the Goodson opinion – if for no other reason than alphabetical order.
This post is from the non-Reed Smith side of the blog.
It has been over 2 months since we lasted posted about an InFuse decision. What’s been happening (outside the DDL Blog world) since that last post. The Cuban flag was raised at its embassy in Washington DC officially restoring full diplomatic relations between the
Holism is a concept modernly used most commonly in medicine –treating both the body and the mind. We don’t see it too often in legal parlance as it’s come to be associated with a somewhat touchy-feely approach. Not something litigators are often accused of being. At its core, holism is a philosophy based on treating something as more than the sum of its parts. So when we read in Schmidt v. C.R. Bard, 2014 U.S. Dist. LEXIS 146459 (S.D. Ga. Oct. 14, 2014) that on a motion to dismiss, the judge was “[r]eading Plaintiff’s Complaint holistically,” we were fairly sure we weren’t going to be happy with the results. And we were right.
A holistic approach to pleadings is precisely what TwIqbal aims to prevent. Either the complaint contains sufficient and specific factual allegations that go beyond speculation and legal conclusions or it doesn’t. Using the TwIqbal standard, a complaint is only as good as its parts; its allegations. You can’t fix bad pleadings by reading into them more than what is there. But we think that is exactly what the court did in this case.
The suit involves the implantation of a mesh device to repair a hernia. Plaintiff ultimately had to have the device removed and alleges permanent injury as a result. Id. at *1-2. Assessing whether plaintiff sufficiently pleaded a design defect claim, the court starts off with a general statement we support: “a bald assertion that the [device] was defective in design . . ., was unreasonably dangerous, and the foreseeable risks outweighed the [] benefits would be insufficient to survive a motion to dismiss.” Id. at *8. But then the court goes on to conclude, and repeatedly state, that plaintiff listed 9 possible design defects and therefore survives a motion to dismiss. The court never identified what those 9 “defects” were, so we looked at the complaint ourselves.
Not quite a year ago we praised a decision out of the Northern District of Georgia for dispatching a plaintiff’s expert after applying Daubert and dispatching an entire case after applying logic. The case was called Brown v. Roche Laboratories, Inc., 2013 U.S. Dist. LEXIS (N.D. Ga. June 6, 2013), and it was another