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For once, our happy birthday wish really has something to do with births, specifically the significance of birth cohorts for litigation strategies and tactics. The actor Paul Rudd is celebrating his birthday today. We like Paul Rudd. We liked him when we first saw him in Clueless. We liked him in all those Judd Apatow and Apatow-esque movies, such as The 40 Year Old Virgin, Knocked Up, Forgetting Sarah Marshall, and I Love You Man. Rudd is likeable even when he is playing a jerk, as in Wet Hot American Summer (both the film and the Netflix series). IMDB lists 100(!) acting credits for Rudd. Rudd usually plays comedy, but we also saw him in a grim Broadway play called “Grace” a couple of years ago. We liked him in that. Pretty much everybody likes Rudd. There’s even a current Bud Light ad campaign where Seth Rogen and Amy Schumer mention how everybody likes Paul Rudd. Rudd seems to have lots of friends in Hollywood. He shows up in projects with the same people again and again, as in the Anchorman films. He has been in five films with Elizabeth Banks, for example. In fact, this ensemble-ness is something we’ve noticed with Generation X entertainers. They seem very collaborative. They show up in each others’ projects, sometimes uncredited, in a free-flowing, generous manner. (Contrast that with the leering booziness of the Rat Pack). Gen X has been defined in various ways, but those definitions seem to cluster around the cohort of people born between 1965 and 1981. Rudd was born in 1969. Ben Stiller was born in 1965. John Cusack was born in 1966. Apatow was born in 1967. Banks was born in 1974. Gen X is a much smaller cohort (approx. 47 million) than the Baby Boomers (80 million) and the Boomers’ children, the Millennials (76 million).

Has there ever been a more maligned generation than X? They were called slackers and whiners. They were deemed the sandwich generation, bitter about the Boomers’ relentless self-centeredness and the Boomers’ seeming determination to keep the seats in corporate America warm for the Millennials. The economy seemed to have no great love for X-ers, and the X-ers returned the favor. These generational generalizations are necessarily wrong almost as often as they are right, but everybody plays this game, so we’ll play along. According to the conventional wisdom, as in a widely read 1990 article in Time Magazine, Gen X-ers are indecisive, have low SAT scores and short-attention spans, and sneer at status. It was also said that a huge chunk of Gen X has been wounded, maybe even scarred, by divorce. Every generation is said to have its big childhood (or ‘emerging adulthood” – a term invented for Gen X) imprint moments. For Boomers, the JFK assassination, Vietnam, and Watergate are the unforgettable events. Gen X’s biggest moment was supposedly sitting in a classroom and watching the Challenger shuttle blow up with a schoolteacher aboard. But the conventional wisdom ( e.g., a 1997 article in Time) has shifted. It’s as if we fogies woke up one day and realized that Gen X cuts a pretty pleasant profile. It’s a stereotype, of course, but Gen X is now viewed as prizing work-life balance, multiculturalism, tolerance, and collaboration. The X-ers still resist snobbery, but express that sentiment by prizing and elevating the quotidian. Is it any accident that Aaron Franklin, the reigning guru of barbecue, is an X-er? Take a stroll through your average downtown, and much of what makes that downtown wonderful is the work of X-ers. Who do you think is responsible for all those microbrews on tap, as opposed to the bad old days where Schlitz was the exotic option?

Continue Reading Talkin Bout Your (?) Generation

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A little over four years ago we reported on our visit to the Mass Torts Made Perfect conference in Philadelphia.  MTMP is a plaintiff lawyer organization.  Every year it conducts a conference in Las Vegas, where plaintiff lawyers get together and plot our clients’ destruction  (Okay, that was a bit too melodramatic)  That Las Vegas

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For the second time in a week we are considering a former professor at our law school, though this occasion swims in sorrow. Before he became a Justice on the Supreme Court, before he became a Judge on the DC Circuit, Antonin Scalia taught at the University of Chicago Law School. Many of the eulogies we are hearing this week highlight things about Scalia that remind us of how well he fit in with that remarkable faculty: the relentless intellectual jousting, where arguments but not the arguers were skewered. There must not have been much lounging in a faculty lounge with Scalia, Posner, Epstein, Easterbrook, Sunstein, Stone, et al. (We cannot overstate our disappointment at reading Epstein’s complaint that when Barack Obama taught at the law school the future president displayed little enthusiasm for the robust intramural debates taking place all around him).

When the pundits discuss Scalia’s legacy, they usually emphasize his decisions on guns or flag-burning, or his sharp dissents in cases  involving the death penalty or gay rights. Not all of those opinions were to our liking.  But defense drug and device law nerds will always have a soft spot in our hearts for Justice Scalia’s opinion in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), where he held that most tort claims against PMA devices are expressly preempted by a federal statute. The decision is logical. The writing is clear. (It is not surprising that Scalia has co-authored books with Bryan Garner that urge lawyers to be more direct, concrete, and muscular in their writing.)

Let’s honor Scalia in a way he would have liked – by saluting his logic and his prose in the Riegel decision. But let’s first offer a prologue by way of considering Scalia’s concurrence/dissent in the Cipollone (1992) case. That case was about preemption of tort claims against cigarette manufacturers. The court’s opinion was authored by Justice Stevens and was a Brunswick stew.  Some of it made sense and some of it was squirrelly.  As with so many Stevens decisions, things that at first blush seem relatively sensible become muddy once you wrestle with the real-life consequences down the road. Stevens held some things preempted and some things not, but good luck figuring that out once you’re down to actual cases. By contrast, Scalia’s opinion in Cipollone is crisp and intelligible. One thing he was especially crisp on was the silliness of the presumption against preemption. As Scalia reasoned, the issue is what was the Congressional intent, as manifested by the plain words of the statute. There is no need to indulge in any presumption in making out that intent. Moreover, a presumption against application of a doctrine that can arise in the absence of any Congressional pronouncement whatsoever, such as conflict preemption, makes no sense.

Continue Reading Remembering Scalia, Remembering Riegel

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Once upon a time there was a federal judge . . . . When we were little, we liked it when our mom spun free-form fairy tales for us.  We would contribute the object of the “was” (“Once upon a time there was a . . . bullfrog”), and she would make up the rest as she went along.  Which is fine for mommies, but less so for federal judges, as today’s (very short) case illustrates.

In Fay v. Depuy Orthopedics, Inc., et al, 2015 U.S. Dist. LEXIS 175344 (D.N.D. June 11, 2015), plaintiff’s hip was replaced with a metal-on-metal hip system.  The system consisted of various components, two of which were at issue:  the femoral head and the acetabular cup.  Both components come in various sizes, but, for the system to work correctly, matched sizes of the two components must be implanted in the patient.

In Fay, it was undisputed that Plaintiff received mismatched components and had to undergo revision surgery.  One of the defendants was a distributor that marketed and sold the system. Plaintiff’s surgeon testified that two specific sales reps employed by the distributor were always in the operating room when he implanted that particular hip system.  According to the surgeon (who was not sued), the reps were responsible, based on a process called “templating” of the patient’s x-rays, for placing an appropriate range of sizes of the two components on a table in the operating room before the surgeon arrived.  From the prepared template, the surgeon would determine what size acetabular cup would be implanted, and would ask for that size cup and the correspondingly-sized femoral head.   The sales reps were allegedly responsible for selecting the components from the implant table, verifying for both that they had pulled the size the surgeon requested, and handing the packaged components to the circulating nurse, who unpacked them and placed them in the sterile field.  In the absence of sales reps, the circulating nurse would be responsible for selecting the correct sizes of components.

Continue Reading Sales Reps Denied Summary Judgment in Artificial Hip Case Despite Absence of Legal Duty to the Plaintiff

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We spent the past weekend in Cleveland, visiting a dear law school friend of whom we see much too little.  Cleveland deserves more press as a travel destination.  It boasts beautiful architecture, (including spectacular bridges, like the Detroit-Superior Bridge over the Cuyahoga River), reasonable prices, and the Cleveland Clinic.  It is also home to the world-class Cleveland Symphony and the renowned Cleveland Museum of Art.  But (not surprisingly, for regular readers of our posts) our most memorable afternoon was spent in that mecca of popular culture, the Rock and Roll Hall of Fame.  We had to be dragged away from the continuous loop of induction ceremony highlights.  We gleefully donned headphones and entered a simulated recording booth, where we “laid down the harmony track” over a melody line sung by a popular artist.  We stared at Elvis’s army uniform and the sheet of paper on which Neil Young first jotted the lyrics for “Heart of Gold.”  But we were most captivated by a room-size exhibit devoted to one of our personal idols, Graham Nash, a two-time Hall inductee (with the Hollies and with Crosby, Stills and Nash), onetime Joni Mitchell cohabitant, and author of a song in serious contention to be our all-time favorite, the folk-y classic “Teach Your Children.”  (In a minute, we will find a way to tie this, however tenuously, to something legal.  We make no such attempt with this link to a lovely moment from the 2007 American Idol finale, on which Nash sat on a stool with an acoustic guitar and performed this song with an Idol finalist.)

Nash is an intelligent, socially-conscious man of diverse talents that include painting and photography.  Among the tidbits revealed in the headphone-accessible interview clips interspersed throughout the exhibit was the fact that he is also a serious collector of memorabilia.  He seeks to acquire items that capture the seminal moments of significant political and musical events.  (For example, his collection includes a piece of the fence that rings the grassy knoll in Dallas.)  In today’s case (see – we told you!), a minor cautionary tale from the Mississippi Supreme Court, the seminal moment in the demise of the plaintiff’s case occurred 120 days after she filed her First Amended Complaint.  While rock-and-rollers can often flout the rules, it’s always a good idea for lawyers to follow them, as this case demonstrates.

In Meeks v. Hologic, Inc., 2015 Miss. LEXIS 610 (Dec. 17, 2015), plaintiff initially sued a physician and a medical center for injuries she had allegedly sustained two years earlier during outpatient gynecologic surgery.   Both defendants answered the Complaint. Two years and 363 days after she discovered her injuries (this becomes important, because Mississippi has a three-year statute of limitations), with leave of court pursuant to the Mississippi rules, plaintiff filed her First Amended Complaint (“FAC”) adding Hologic, manufacturer of a device used in her surgery, as a defendant, and adding warranty claims against all defendants.  Plaintiff served the doctor and the medical center with the FAC, but never served the FAC upon Hologic.   Neither the doctor nor the medical center answered the FAC.  (This was also important in the plaintiff’s mind, but it wasn’t really.)

Continue Reading Mississippi Plaintiff Defeated By Improper Construction of “Amend As A Matter Of Course” Rule

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Sometimes it takes an outsider to point out  something that should be blindly obvious.  In this case, that role was performed by a couple of our colleagues earlier this month at the annual ACI Drug and Medical Device Litigation Conference.  They both told us how useful they found the new – adopted in 2015 − Pennsylvania Suggested Standard (Civil) Jury Instructions (“Pa. SSJI Civ.”) on the learned intermediary rule in prescription drug and medical device litigation.  So we thought we’d introduce them to you.  Here they are:

23.00 (Civ) Duty to Warn − Reasonable Care

In the case of prescription [drugs] [medical devices], the manufacturer has an obligation to exercise reasonable care to inform the plaintiff’s prescribing physician about the risks of its product.  Such a manufacturer has a duty to warn about risks of its products that are not generally known, if the manufacturer knew or reasonably should have known about the risks of its product.

23.10 (Civ) Duty to Warn Physicians, Not Patients − Learned Intermediary Rule

A drug or medical device manufacturer only has a duty to warn the [prescribing] [implanting] physician about the dangers of its [drugs] [medical devices].

It does not have a duty to warn patients directly.

If you find that the defendant adequately warned the plaintiff’s [prescribing] [implanting] physician, even if the physician did not transmit that information to the plaintiff, you must find for the defendant on the failure-to-warn claim.

23.20 (Civ) Different Warning

The plaintiff has the burden of proving both of the following:

  1. that the defendant did not adequately warn the [prescribing] [implanting] physician about the risks of its [drug] [medical device], and
  2. that the [prescribing] [implanting] physician would not have [prescribed] [implanted] the [drug] [medical device] if a different warning had been provided.

23.30 (Civ) Physician’s Knowledge − Other Sources

A pharmaceutical or medical device manufacturer that fails to adequately warn the [prescribing] [implanting] physician about the risks of its [drug] [medical device] is not liable if the physician was aware of the risks from medical literature or other reliable sources.

If you find that the plaintiff’s [prescribing] [implanting] physician already knew about the risks of the defendant’s [drug] [medical device] when he or she decided to [prescribe] [implant] it [to] [in] the plaintiff, then you must find for the defendant on the negligent failure-to-warn claim.

Continue Reading Introducing the New Pennsylvania Learned Intermediary Jury Instructions

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We do not have a case to blog about this week.  Things in the DDL world are slow.  Well, that is not exactly right.  In fact, maybe it is exactly wrong.  There is plenty going on, but virtually all the bloggable (that is, interesting and not yet already well-publicized) DDL cases involve our firm, Reed Smith, in some way, and blogging about such cases is like running through a gauntlet and minefield.  It is probably a good problem to have – unless you are staring at an empty computer screen and Bexis is clamoring for content.  So where does that leave us?

Usually we run into these doldrums during the Summer, when courts plunge into a blissful torpor.  The first time we completely discarded the DDL script and blogged about no case  was the Summer of 2011, when we went fully self-indulgent (or, at least, more self-indulgent than usual) and told a story about a deposition against a plaintiff lawyer who claimed to be the provocation behind Star Wars.  In truth, it is probably the single best blog post that emerged from our clumsily pecking fingers.  The folks at Abnormal Use recently linked to that post, so the number of views spiked.  Our cheap immortality grows yet again.

So now comes our Return of the Nerdy.  Put plainly, we are embarrassingly excited about the release of The Force Awakens later this week.  Our childish enthusiasm is marred only a little by the grim undercurrent mantra of “Please Please Don’t Suck”.  The prequel trilogy left psychological and aesthetic scars.  From what we hear, this new entry is set 30 years after Return of the Jedi.  And, in fact, it is about 30 years since Return of the Jedi.  JH Abrams has taken the helm from George Lucas, which is almost certainly a Very Good Thing.  Abrams did a nice job with the Star Trek reboot.  And let’s not forget that Lucas did not direct the best Star Wars film, The Empire Strikes Back, while he did oversee the excrescence called The Phantom Menace.  (The Simpsons episode where Bart watches in disbelief how that film centered on a tariff dispute is absolutely precious).  The great Lawrence Kasdan wrote The Force Awakens screenplay.  John Williams composed the score.   We are weak-kneed with anticipation.

Continue Reading “You are unwise to lower your defenses!”

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This week sees the annual ACI Drug and Medical Device Litigation get-together in New York.  Here’s a shameless plug: we will take part in a panel discussion on civility, diversity, and ethics.  We were assigned the dreaded end-of-conference Friday afternoon slot, so we are prepared to bellow over the din of retreating rollaboards.  Always a good time.  Rumor has it that some plaintiff lawyers are showing up.  The panel will devote a few minutes to discussing how nice it is to be nice. We might also devote a few minutes to challenging that assumption.

Not that we have anything against conviviality, especially this time of year.

Conviviality is good in itself, but it can also serve a purpose.  Recently we attended an MDL hearing. Part of the festivities included a cocktail party, complete with defense hacks, plaintiff lawyer pursuers of justice (in the form of wire transfers), and court staff. Talk about civility!  Several times we were treated to an odd bit of theater where a lawyer would snicker about how something weird and wonderful happened, but how it dare not yet be revealed.  Then, two or three sips later, that same lawyer would whisper out of a mouth corner something like, “Okay, here’s how it went down.”  Most of what we learned was silly or possibly wrong.  But we gathered at least one useful tidbit.
Continue Reading A Civil Discussion

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We have been riding the Philly subway for years, but only recently realized how much the ads on the car walls have changed. Not so long ago there were lots of ads for vocational schools, inducing today’s un- or underemployed to become tomorrow’s truck drivers and beauticians.  But nowadays at least three quarters of the ads are from plaintiff lawyers hawking their ability to wring cash out of slip-and-falls or the latest mass tort.  Mass transit advertising space that formerly advised riders to get skills is now dedicated to pleas to get paid.  The same is true for daytime television advertising.  Perhaps we are not alone in seeing this evolution as further proof, along with Keeping up with the Kardashians and the ascendancy of kale salad, that our culture is headed to Hell in a handbasket.

You won’t be surprised to hear defendants and their lawyers bemoan plaintiff lawyer advertising.  But we are not alone.  Recently, we heard a MDL judge express frustration about how plaintiff lawyer advertising was a blatant attempt to extend the tail of an over-mature mass tort.  Some plaintiff lawyer advertising is naked poaching of other plaintiff lawyer inventories – e.g., why pay a 40% contingency fee if you can pay only 20%?  But the most obvious aim and effect of such advertising is stirring up litigation.  What might not be so obvious is the extent to which plaintiff lawyer adverting causes adverse health outcomes.  A recent law review article looks into this issue and it is well worth reading. The article is by Elizabeth Tippett, a professor at the University of Oregon School of Law. The title is “Medical Advice from Lawyers: A Content Analysis of Advertising for Drug Injury Lawsuits,” 41 Am. J. L. & Med. 7 (2015).

Continue Reading The Risks of Plaintiff Lawyer DTC Advertising

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To keep the DDL blog up and running even through the dog days of Summer, your trusted correspondents try to stagger their vacations.  Bexis recently got back from his typically Hemingway-esque adventure, and now it’s our turn.  Unlike Bexis, if we go hiking anywhere, it is more likely in pursuit of beer or chocolate, not