The following post is exclusively the work of the Reed Smith side of the blog.
Sometimes the smallest, least significant type of lawsuit can illustrate cracks in the edifice of the largest, most consequential litigation. So, in our opinion, it is with Neurontin. In this version of the story, the role of “Mack” is played by Herricks v. Pickaway Correctional Institute, 2013 WL 4804983 (S.D. Ohio Sept. 9, 2013). That’s prisoner litigation − mostly convicts with nothing better to do with their time than try to sue their jailers. The great majority of these cases get the back of the judicial hand. There aren’t many litigation genres of less significance than that.
Playing the role of “Yertle” is the First Circuit’s circuit-splitting trilogy, Kaiser Foundation Health Plan, Inc. v. Pfizer, Inc., 712 F.3d 21 (1st Cir. 2013), Aetna, Inc. v. Pfizer, Inc., 712 F.3d 51 (1st Cir. 2013), and Harden Manufacturing Corp. v. Pfizer, Inc., 712 F.3d 60 (1st Cir. 2013) – all of which also travel under the heading, In re Neurontin Marketing and Sales Practices Litigation. Not so coincidentally, the defendants filed a petition for certiorari in the Neurontin trilogy the other day. Big cases – high courts.
The Neurontin cert. petition didn’t cite Herricks, of course, but we think that what went on in Herricks is as good an illustration as any why the First Circuit got it spectacularly and loudly wrong when it allowed the plaintiffs in the Neurontin trilogy to proceed with what amounts to an aggregate trial by formula that deprives the defendants of contesting the individual merits of any of the thousands – heck, millions – of individual claims at issue. Can you say “due process violation”?
First, Herricks. Prisoner plaintiffs can’t sue prison doctors for ordinary malpractice, at least not in federal court, where most of these cases seem to end up. Instead, they must meet a higher constitutional (Eighth Amendment) standard of “deliberate indifference.” Needless to say, most prisoner cases can’t meet that standard. But the inmate-plaintiff in Herricks did. What did the court (actually, a magistrate) find could meet that standard?
The prison doctor’s refusal to treat the plaintiff-prisoner off-label with Neurontin.