Jurisprudence

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Today is the day when we will learn whether the Governor of Louisiana will enter the 2016 presidential race.  That reminds us of Louisiana’s rather colorful collection of politicians, including Huey Long and Edwin Edwards. You probably already know that Louisiana boasts an unrivaled array of colorful characters in every field of endeavor, from chefs (Emeril Lagasse, Paul Prudhomme), sports (Peyton Manning, Pistol Pete Maravich),  music (Louis Armstrong, Dr. John – and about a million others), and philosophy (Huey Newton, Uncle Si).  Louisiana has added its own spicy flavor to the law, as well.  If you asked drug and device defense lawyers who is the single most flamboyant, unpredictable plaintiff lawyer in the land, we bet a certain lawyer from Louisiana would garner the most votes.  Pelican State courts have also given us some of the highest highs and lowest lows in product liability litigation.

Examples of both such highs and such lows reside in the recent case of Ezeb v. Sandoz Pharmaceuticals, No. 2015-C-0204 (Ct. App, 4th Cir. La June 17, 2015).  What we have in the Ezeb case is one of the very worst summary judgment rulings by a court we have ever seen, ultimately reversed by an eminently sensible appellate court decision.  Usually when we talk about a bad summary judgment decision, we are bemoaning a court’s failure to grant some virtuous defendant a ruling that dismisses some ill-conceived case.  But in Ezeb the trial court granted partial summary judgment to a plaintiff on grounds so wrong-headed as to beggar belief.

While we supply the requisite procedural background, you might want to supply appropriate background music by a Louisiana legend – perhaps the smooth stylings of Harry Connick, Jr., Geno Delafose, or Lil Wayne.  In or about 1990, the plaintiff filed a lawsuit against numerous doctors, hospitals, and pharmaceutical companies claiming that they played a role in overdosing him with a drug and thereby causing him various injuries.  He sued the medical professionals for negligence, and sued the drug manufacturer under the Louisiana Products Liability Act (LPLA) for failing to warn of the side effects of the medication.  One of the defendants was Caremark, the company that employed a treating nurse at the medical center where the plaintiff was administered the medicine. The plaintiff had alleged that the nurse played some role in the overdose.  In 2008 (so now we are 18 years after the case was initiated), Caremark filed a motion for summary judgment.  Reading between the lines of the decision, it appears that Caremark argued that there was no evidence establishing that its nurse was responsible for the dosing decision.  Caremark’s summary judgment motion was unopposed, and the court, not surprisingly, granted the motion.   All of the plaintiff’s claims against Caremark were dismissed with prejudice.Continue Reading Louisiana Appellate Court Overturns Improper Application of “Law of the Case” Doctrine

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Appealability issues in multi-district litigation can  present knotty problems.  While we (that is, Bexis) came up with the preemption argument that killed off fraud on the FDA claims, the realities of MDL practice meant that, even after winning, there was no appeal.  Only when a peripheral defendant – an FDA consultant facing no other claims – filed a “me too” motion was an appealable order created. The consultant’s name was Buckman.

Thus we read with interest the resolution of the MDL appealability issue in Gelboim v. Bank of America Corp., 135 S. Ct. 897 (2015).  Gelboim has nothing to do with drugs and devices; it was an anti-trust case.  The substantive issue was “anti-trust injury,” which doesn’t matter here except to the extent that the district court held that the plaintiffs didn’t have any cognizable injury.  Since the plaintiffs in question didn’t have any other claims, that meant their action was kaput.  Time to appeal, right?  The district court thought so.  135 S. Ct. at 903-04 (discussing procedural history).  In addition, the MDL court issued an order under Fed. R. Civ. P. 54(b), allowing certain other plaintiffs to appeal, even though they had other claims remaining.  (A use of Rule 54(b) also produced the Buckman appeal.)

Not so fast!  The court of appeals said no. Based on a “strong presumption” that appeals in “consolidated cases” were not final, the Second Circuit (the appeal was from the S.D.N.Y.) dismissed the appeal.Continue Reading Supreme Court Clarifies MDL Appealability Issues

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“Our rural ancestors, with little blest,
Patient of labor when the end was rest,
Indulged the day that housed their annual grain,
With feasts, and off’rings, and a thankful strain.”

― Alexander Pope, Imitations of Horace

Today isn’t officially a holiday, but the preparations for Thanksgiving make it terribly difficult to put in a productive…

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Luddite.  Technophobe.  Fogey.  Fossil. Geezer.  We’ve been called all of those.  We plead guilty.  We prefer matches to lighters, manual transmission to automatic, fountain pens to uniballs, and wind-up watches to quartz.  We refuse to (that is, cannot) redline documents.  When it comes to computers, we are an easily confused fogey.  We leave the court’s…

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A bit of a rant today.

We’ve just read Gibson v. American Cyanamid Co., ___ F.3d ___, 2014 WL 3643353 (7th Cir. July 24, 2014), and we have to say that it’s one of the most constitutionally arrogant decisions we’ve ever read.  Stripped to its essentials, Gibson is the judicial branch thumbing its nose at the supposedly co-equal legislative branch and saying “we can do it but you can’t.”

Gibson involves one of these seemingly one-way legal doctrines that only protects plaintiffs, but for some reason never defendants, the concept of so-called “vested rights.”  Here’s the back-story.

Thirty years ago, the Wisconsin Supreme Court, in a judicial exercise of social policymaking, decided to adopt a peculiar form of an already peculiar doctrine – market share liability.  See Collins v. Eli Lilly Co., 342 N.W.2d 37 (1984).  The court breached a hitherto (mostly) sacrosanct defense – product identification − that a defendant can’t be liable unless the plaintiff first proves that s/he actually used the defendant’s product.  The reason was … well, the usual fuzzy-headed logic that the common law can change and we think it’s better that the plaintiff wins.  Id. at 45 (we can change the common law), 49 (we’re gonna change the law and let the plaintiffs win because of “interests of justice and fundamental fairness”).  Despite the fact that the product was off the market and plaintiffs had taken it many years earlier, the court in Collins had no compunction in extending this new theory of liability retroactively to defendants whose conduct had previously been protected by the product identification defense.

Collins, as most of our readers probably already know, was a DES case.  DES was, for all intents and purposes, the world’s first generic drug.  Its patent had expired, so anybody who wanted to go to the time and effort to do so (this was the pre-1962 FDA, before NDA requirements were made a lot tougher) could set up shop and make the drug.  Scores of companies did, and “DES” became the reference of choice for most doctors and pharmacists.  Given the peculiarly long latency period for the peculiar injury – suffered in utero − in DES cases, product identification was a mess.  Collins decided to let the plaintiffs win anyway by shifting the burden of proof, contrary to decades (at least) of precedent.

At least in Collins there was a real product identification problem.  In the next case (the one ultimately at issue in Gibson), a bunch of class action lawyers decided to gin up a product identification problem.  They wanted to sue on behalf of everybody theoretically injured by lead paint, which had been off the market for a quite a while by the time suit was brought.  Since causation was an individualized issue that could defeat aggregated litigation, they created an impossible ID problem by skipping over the manufacturers of lead paint (some of whom might have been identifiable in building maintenance records) and sued only the bulk suppliers of lead paint pigment.Continue Reading Court: It’s Only Unconstitutional If You, Not We, Do It

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Bexis is away on vacation this week.  In the past when Bexis has vacated, some uncharitable readers have alleged that the posts on this blog become lighter, maybe even frivolous.  We object.  You’ll find just as much snarkiness this week on preemption and the learned intermediary doctrine.  You’ll probably find yet another discussion of yet another Aredia-Zometa case.  But  today you’ll find something a little different.  We hereby offer a counterfactual travelogue.  Luckily for you, we cannot force you to watch the slide show.

Bexis takes great vacations.  He takes active, muscular vacations.  The walls of his office are covered with photos of craggy canyons, menacing volcanoes, and generous waterfalls he has explored. Let’s face it: Bexis is the Teddy Roosevelt of vacationing lawyers.  He clears more than legal underbrush.  You have probably heard people joke that they wish they could be adopted by some rich person.  That’s how we feel about Bexis.  We wish Bexis would take us on one of his fabulous treks. But this year, once again, he didn’t. Once again, we are left in Philly, forlorn and forgotten.

And yet, nothing can stop us from imagining what it would be like to travel with Bexis.   One wouldn’t have to strain one’s imagination too hard to conjure up an exciting Drug and Device Law itinerary.

Boardwalk Empire/City of Brotherly Love

Mountains or the beach – that’s always the question, isn’t it?  Of course with Bexis, you are likely to get both.  We proposed Huntington Beach, to see if Bexis could hang ten.  But he put the kibosh on anything involving California:  “There are already too many litigation tourists there.  Oddly, they always congregate in groups of just under 100.  None of them has ever been to California before.  They all met on the Internet.  And their sunglasses all came from the same distributor, no matter where, when, how many times, or for how long they bought them.”  We didn’t get what he was talking about, and we suggested that the virtue of California was its reliably good weather.  “There’s nothing reliable about Cali,” he sputtered, “you know what they say out there don’t you? ‘Reliance, we don’t need no stinking reliance!”

Clearly, if we were going to a beach, it would be on our side of the continent.  And it would be a road trip.  That’s okay.  We have always loved road trips.  We remember when we were high school juniors driving down to Charlottesville to visit UVa.  We decided to save time by driving our Pinto at top speed (about 40 mph) backwards on I-95 and I-64.  Predictably, everyone got out of our way.Continue Reading Travels with Bexis

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This post is written by our Reed Smith colleague, Adam Masin, who is solely responsible for its content.  He gets all the credit and all the blame.

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This blog has previously written about Tennessee’s unusual statute of repose, here, here, and here, which bars claims “within one (1) year after the expiration date of the anticipated life of the product.”  Tenn. Code Ann. Sec. 29-28-103.  “Anticipated life” is a curious term.  For example, the season finale of Homeland had many of its main characters wondering what their own “anticipated life” might be like given their circumstances.  But we are not here to discuss the rather unrealistic-yet-compelling Homeland universe in which a bipolar CIA agent who never follows orders and is carrying the baby of the brainwashed former almost-terrorist who may not have bombed the CIA but still pretty much murdered the Vice-President can somehow find herself sent to Iran on purpose to oversee an impossible mission that involves trying to save her magically detoxed boyfriend (no spoilers here!).  That’s a different blog post we’d like to write.  We are here now to talk about “anticipated life” as it refers to products in Tennessee, the state that shares a border with the state where Homeland is filmed.

In Tennessee, “anticipated life of the product” is the “expiration date placed on the product by the manufacturer when required by law but shall not commence until the date the product was first purchased for use or consumption.” Id. at Sec. 29-28-102.  In Wahl v. General Electric Company, 2013 U.S. Dist. LEXIS 162320 at *19 (M.D. Tenn. Nov. 14, 2013), that meant that the plaintiff’s claims were barred by the statue of repose well before the plaintiff knew she had developed the condition she based her lawsuit on.  The same was true in Montgomery v. Wyeth, and Spence v. Miles Lab.  Other states have carved out latency or similar exceptions to their statues of repose that might apply to prescription medical products for various reasons, but Tennessee has not chosen that path.

Perhaps the only thing more unusual than Tennessee’s “anticipated life” statute of repose, however, is how courts have reacted to it.  In Montgomery, the trial court began its opinion by questioning the propriety of the law:

Rarely does this Court suggest that a legislative body reconsider one of its enactments. The Court believes its role is simply to apply the law applicable to the case before it and not concern itself with the merits of the case. However, because of the result in this case, this is one of those rare cases where the Court believes it is appropriate to urge the Tennessee legislature to look closely at the law governing this case.

The court in Wahl ended its own opinion doing the same thing:

the court views the result in this case as manifestly unjust. Through no fault of her own, Wahl is left with an essentially incurable degenerative condition for which she has no recourse, because Tennessee extinguished her claims against GE before she could have discovered them. The time period here between the procedures at issue and Wahl’s NSF diagnosis was only about four years, which is not a time period that shocks the conscience. This court, as did Judge Collier in Montgomery, 540 F. Supp. 2d at 936 and 945, urges the Tennessee General Assembly to revisit the TPLA and its effect on Tennessee citizens injured by pharmaceutical products.

Continue Reading Guest Post – Homeland and Anticipated Life (under Tennessee law): Being On the Wrong Side of Policy Isn’t Always Unjust

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Eight times out of ten, the advice of “save it for trial” is flat-out wrong.  Nine times out of ten, the person offering that advice has not done as many as ten trials.  It is laziness masquerading as sophistication.  Nine times out of ten there won’t be any trial.  But there will certainly be motions.  Or settlement talks.  Isn’t it better to have something valuable on the record for those festive occasions?  An after-the-depo, self-serving affidavit packs a puny punch.  If there is a trial, that thing you were saving might not really be available, or might not be what you thought it was.  When you spring that gotcha point during cross-examination of the expert, you might be the one who gets got.

Earlier this week, blogger emeritus Mark Herrmann wrote a column entitled, “The Need for Direct Exams of Your Own Witnesses at Depositions.”  It is on the Above the Law blog and can be found here. Read it.  Learn it. Live it.  We admit that we are completely in the bag for Herrmann, and not only because he is a cofounder of the DDL blog.  He is relentlessly insightful.  He has a way of making points that are clear and stick to the mind – even if, like ours, that mind is made up of Teflon, the fake butter that greases movie popcorn, and the collected works of Sid and Marty Krofft.  If we had to fling one book at a first year lawyer who handed in an especially dismal scrap of work product, it would be Herrmann’s The Curmudgeon’s Guide to Practicing Law.  That book is full of useful, concrete advice.   (Ask short questions, do not hand in incomprehensible memoranda, treat your secretary with respect, etc.)  Plus, now Herrmann is in-house counsel, which confers on him an undeniable aura of infallibility.

We cannot improve on Herrmann’s pellucid prose, and he does a fine job of demolishing the conventional wisdom of reserving all questioning of one’s own witnesses for trial.  Even if the witness is young and healthy and apparently cooperative, a lot of things can happen that will make that witness unavailable for trial.  There is a whirlwind of employee turnover out there and our clients are not immune from it.  Attitudes change.  Judicial caprice or cruel logistics might make it not so easy to haul company witnesses to a jurisdiction that exists far away (and maybe back in time).  Moreover, wouldn’t you like to have a few good things on the depo videotape?  All it takes is a couple of minutes of innocuous praise of company policies, procedures, and culture to create context and blunt the awfulness of a series of damaging admissions.Continue Reading Herrmann is Right (as usual): Do Direct Exams When You Defend Depo Witnesses

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The reason that so many law firms have casual Friday (or casual everyday) dress policies is because back in the 1990s they took a cue from their sexier (i.e., high-tech) clients, who shed three-piece suits in favor of Dockers and polo shirts. Imitation was not flattery nor was it mere sycophancy. Rather, it made good business sense. We wanted to entice those 22 year old dot.com-mers with forward-looking hipness, and Brooks Brothers and Brioni suddenly seemed repellent. Law firms are conservative institutions. They are laggers, not early-adopters. The clients are always ahead of us. We find that out every time we deliver CLE lectures on compliance to in-house counsel; invariably, the in-house lawyers have come up with policies and techniques light years beyond our puny recommendations.

Several of our clients are blazing a trail when it comes to office design. Many of our friends from high-tech companies in the communications and health care fields are moving into new digs with open floor plans. This development is a dramatic leap over what we have dealt with since … well, since we joined the working world.   To be sure, even in the 1980s some financial houses (including several that are now defunct) were famous for their open bullpens, but they were the exception, not the rule, at least among our clients.  When you enter a typical, traditional office, and certainly a traditional law firm, you will encounter the usual circle of office-boxes, with inner and outer rings for perambulation. The idea is to get to that inner ring quickly when you are trying to go somewhere. But there is a cost to that efficiency. You end up avoiding contact with your colleagues. You can spend an entire day without bumping into more than three or four people. That’s a pity.

The trend is away from those offices and those rings.  The International Facility Management Association reported last year that more than two-thirds of new workplaces adopted an open plan.  Why is that?  To begin with, it is cheaper.  If you are in an open space, you don’t need as much space dedicated to you personally.  You won’t feel claustrophobic in a 4×6 area if it is surrounded by vast vistas of corporate wonderfulness, but you would if that was the size of your enclosed box.  The average amount of space per employee in the United States has dropped by over a third since 1985, from 400 square feet to 250.
Moreover, the open plan allegedly promotes efficiency.  A study in the Harvard Business Review concluded that companies “that encourage collaboration by switching from closed-offices to open-offices realize performance increases (speed and accuracy of work) by 440%.” Could that be from enhanced creativity? Or that it is harder to do online shopping when your computer screen is so much more conspicuous?Continue Reading Interior Decorating and the Email Scourge

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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