We love to read opinions that reach conclusions in a direct and precise manner (more so when we agree with the conclusion).  There is a certain skill in using simple language to convey complex ideas.  In this blogger’s opinion, nobody does it better than Hemingway.  That’s not really going out on a limb; using a

The following is a guest post from Reed Smith’s Rachel Weil. As always, she takes full responsibility for the content of the post.
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Dipping our toes into the blogosphere is intimidating, given the company in which we daily find ourselves. We can claim neither Bexis’s pinpoint command of all recorded jurisprudence nor McConnell’s encyclopedic recall of

We read rulings under the Federal Tort Claim Act about as often as we read bench trial rulings or rulings from the District of Montana.  Or rulings where a judge says he is retiring in two days.  That is, with a frequency somewhat below what our diminishing memory can recall.  In Holtshouser v. United States

We previously discussed the Montana Supreme Court case of Riley v. American Honda Motor Co., 856 P.2d 196 (Mont. 1993) and touted it as one of the best rejections of the heeding presumption we’ve seen – rejecting all of the most often advanced arguments in favor of the heeding presumption.  So we were a bit surprised when we learned about that same court’s decision in Patch v. Hillerich & Bradsby Co., No. 2011 MT 175, slip op. (Mont. July 21, 2011) (unpublished) – applying the heeding presumption.

While not a drug or medical device case, Patch is definitely a step backward by the Montana Supreme Court and one that may well have implications for our clients.  Patch involves the tragic death of an 18 year-old boy who, while pitching a baseball game, was struck in the head by a ball hit using an aluminum bat manufactured by the defendant.  Patch, slip op. at 2.  A jury returned a verdict for the plaintiff finding that the defendant failed to adequately warn about the enhanced risks associated with its bat which allegedly increased the velocity speed of a batted ball.  Id. at 3.

On appeal, the defendant sought review, among other things, of the lower’s court’s denial of defendant’s motion for judgment as a matter of law on the failure to warn claim.  Id. at 2 (other aspects of the appeal raised issues related to decedent’s status as a bystander, the “workability” of providing a warning, and assumption of the risk, see id. at 5-8, 12-13).  The main issue – causation.  It is here that the Montana Supreme Court seems to do an about face.

The question in Patch was whether the trial court’s adoption of the heeding presumption violated the holding of RileyId. at 9.  Clearly, it does.  In Riley, the court specifically rejected the argument that the heeding presumption – i.e. shifting the burden of causation to the defendant – is necessitated by the policy underlying strict products liability.  Riley, 856 P.2d at 200 (“[w]e are unwilling to shift the respective parties’ burdens in such a fashion. . . . A defendant certainly is in no better position to rebut a presumption which totally excuses a plaintiff from meeting the causation element than a plaintiff is in establishing the causation element as part of the prima facie case.”).


Continue Reading Montana Takes a Flexible Approach to the Heeding Presumption

We hate to start the New Year by reporting on a dismal case but, as we said on Friday, the Montana Supreme Court’s decision in Stevens v. Novartis Pharmaceuticals Corp., 2010 MT 282 (Montana December 30, 2010), adds to this Winter of discontent. Once a Supreme Court comes out with a decision, you’re stuck with it. Smart lawyers try to make the best of such decisions, even when they are mostly bad news. Bexis is a smart lawyer, so that’s what he did on Friday, emphasizing the Montana Supreme Court’s reaffirmation of the learned intermediary rule.

And now we must confront the ugly bits in the opinion.

Before we do that, let’s confess to a smidgen of exasperation. For a couple of weeks in a row, the Monday column has had to report bad opinions. Last week it was the horrific Bausch case from the Seventh Circuit. We’re starting to feel like Stuart Scott from ESPN’s Sportscenter, when he was always saddled with providing the ‘highlights’ for the crappiest football games of the week. This was a while ago — back then, the worst teams were Tampa Bay, Green Bay, and Pittsburgh. (An LA Times sports columnist called the Steelers “Pitt Bay” to keep the Bay theme going when listing the Bottom 5 NFL teams). Poor Stuart Scott dutifully struggled to say something interesting about the latest interceptions heaved by the likes of Bubby Brister or Vinny Testaverde. Maybe that grim parade is what prompted Scott to resort to endless catch-phrases: “cool as the other side of the pillow,” “all that and a bag of chips,” and, of course, “Boo-yah.

We wish we could dismiss the Stevens case with a few catch-phrases, but it won’t be so easy. The plaintiff claimed that Novartis had failed to warn that Zometa could cause osteonecrosis of the jaw (ONJ). The plaintiff had begun taking Zometa in 2002 for lymphoma. In early 2005, the plaintiff was diagnosed with ONJ and stopped taking Zometa. ONJ is a progressive disease, so the plaintiff’s problems with it continued. More happily, the plaintiff’s cancer “was in remission, as it has been ever since.” Slip op. at 6.


Continue Reading A Big Boo (Not “Boo-Yah”) for the Montana Supreme Court

On this last day of the 2010, we’d like to wish our readers a happy, healthy, and prosperous new year.  To all our defense side readers, we further wish you success in winning your cases.

Now, because we are the Drug and Device Law Blog, we can’t just leave our post just at that.  Two