We (in the peculiarly singular sense) last posted on the day after Thanksgiving, a day sometimes referred to as Black Friday because of the number of retailers that offer purportedly discounted prices to lure eager holiday shoppers.  We have discussed before how the moniker seems more appropriate for other historic events.  It was probably apparent from that post that shopping, particularly at brick-and-mortar stores, is not our favorite thing to do.  We do know, however, that others can be drawn to certain, packed locations by the lure of a good deal.  So too—seamless transition, huh?—can plaintiffs flock to jurisdictions where their lawyers expect a good deal from judges and juries.  Assuming subject matter and personal jurisdiction exists, an assumption we think may be less likely to be foregone in the future, the plaintiff generally gets to pick where the defendant will have to show up to see what kind of deal it can get.

Once jurisdiction exists, there are two vehicles for a defendant to move a case.  The first often has less utility—a motion to transfer to another court within the same state (or to a different federal court when the case is in federal court, which plaintiffs generally try to avoid in the first place).  Consolidation of cases involving the same product through the application of aggregation procedures limits the availability of motions to transfer, but transferring from one court in a state in which the big drug or device manufacturer does not want to be to another court in the same state may not improve the deal much.

The second vehicle is to claim that the forum, typically meaning anywhere in the state where sued, is an inconvenient one for the defendant and the case.  There is some basic appeal for the plaintiff’s response to a forum non conveniens motion lodged by a defendant sued in its own state—how can it be inconvenient for you to be sued in your own state?  Because many drug and device manufacturers are based in, or have subsidiaries that are based in, New Jersey, and because one of the mass tort judges in New Jersey was generally thought to be somewhat inclined to one side of the v., Atlantic County, New Jersey, became a favorite destination for litigation tourists.


Continue Reading Inconvenient (Forum) Shopping in New Jersey

August signals different things to different people.  When it comes to football, two August events come to mind:  1) NFL preseason games and 2) high school “two-a-day” practices.  The former are not like real NFL games, but they are better than nothing, particularly if you like to see how rookies are doing, guess at final rosters, or look for insight into compiling fantasy teams.  The latter have lost some of their mysticism due to school restrictions driven by safety concerns.  Long gone are the days of no water during practices (see Bear Bryant at Texas A&M in 1954) and the tradition of two practices per day in full pads seems to be disappearing.  There are still vomit-inducing gassers and thigh-burning hills.  There are also still numerous drills focused on the most basic of football plays, the run up the middle.  Good offenses need to be able to get the crucial yard with a dive on third and 1 and good defenses need to be able to stop the offense cold in such situations.  This has not changed.  There was a time, however, when an end run, a run to the outside, was considered a bit sneaky, particularly if there was an accompanying fake dive.  The “end run” has lived on in our vernacular as a less than straightforward way to accomplish a goal.

When it comes to prescription drug product liability cases, the most direct—and we would maintain, appropriate—way to establish liability cases is with a failure to warn claim.  The vast majority of jurisdictions recognize that the duty to warn in such cases runs to the prescribing physician (or other health care provider).  We have gone on many times about what the learned intermediary doctrine really means.  One thing most courts to come down clearly on the issue of proximate cause in prescription drug failure to warn claims have recognized is that a plaintiff bears the burden of establishing that a different warning (at the time, as to the condition plaintiff claims to have developed) would have changed the prescriber’s behavior such that the injury would not have happened.  Overwhelmingly, proximate cause in such cases turns on the testimony of the prescribing physician that she likely would or would not have still prescribed the same drug to the plaintiff even if the drug’s label (and other labeling like Dear Doctor Letters) had been changed to what plaintiff contends it should have.  We think this is appropriate.


Continue Reading Allowing An End Run on Proximate Cause for Failure to Warn

This post is from the Reed Smith side of the blog only – the Dechert lawyers were not involved.

The Iowa Court of Appeals has affirmed summary judgment entered in favor of both branded and generic manufacturers of metoclopramide, looking at Mensing’s effect on both in the process.  In Huck v. Trimark Physicians Group,

We wrote yesterday about how common sense had gone missing from the Southern District of Illinois. But common sense is like the Dow Jones index – some days it is down 1,000 points in a few minutes, other days it is up 400 points. Today we’re bullish. Specifically, we are happy to report about a

Years ago we were often entertained by the comedic stylings of “Professor” Irwin Corey, “World’s Foremost Authority.” Authority in what? (Or so we imagine you asking.) Well, that’s the point. He was an authority on everything and nothing. His shtick was to amble on stage dressed in a collegiate gown and sneakers, and then hold forth on a variety of topics via double-talk, stream-of-consciousness, and abrupt, nonsensical topic changes. Here’s an odd bit of high-brow/low-brow trivia: Ayn Rand was a big fan of Professor Corey.

For some reason, we think of Irwin Corey when we confront plaintiff expert witnesses in drug or device cases. Plaintiff lawyers are nothing if not cheap, so they like to use the same experts again and again to cover a broad swath of scientific and technical areas, even if those areas are far away from the witness’s training and practice. More often than not, they (the plaintiff lawyers and the instant “experts”) get away with it. We remember deposing a professor of marketing who not only uttered the most inane thoughts on how certain advertisements contained Freudian themes, but also took a few stray shots at cancer causation. Like any semi-awake lawyer, we asked the witness whether he considered himself an oncologist. The witness than said something like, “I’m not board-certified as a medical doctor, but I think that I have had education, experience, and training that would permit me to share a few things that would be helpful to the jury.” And then he grinned. He grinned because he knew he had played the game well.

Too many courts let plaintiff experts play the game. Courts are supposed to act as gate-keepers. Gate-keeping must be plenty hard, because more than a few judges seem inclined to let phony experts blather. The judges would rather have the jurors sort it all out. It’s possible that we are irretrievably scarred on this issue, since we practice in a jurisdiction where a witness is qualified to testify as an expert if the witness “has any reasonable pretension to specialized knowledge on the subject under investigation.” Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-81 (1995). That’s right, “pretension.”


Continue Reading World’s Foremost Authority