Over the past week, we received two new decisions from our readers. This post is about the first of them (there’s an internal hang-up with the other, that we hope will clear up shortly).
The first case sent to us is In re Plavix Related Cases, 2014 WL 3928240 (Ill. Cir. Cook Co. Aug.
Here’s another guest post, this time by Vani Singhal and Jason McVicker of McAfee Taft. It’s about tort reform, Sooner style. As always, our guest correspondents get all the credit (or blame, as the case may be).
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Oklahoma has enacted a new law relating to evidence in product liability cases. It is effective on November 1, 2014 (for new cases, its application to existing cases will probably be litigated). The short version is as follows: In a formulation/labeling/design case, if a manufacturer or seller can prove compliance with federal safety standards, it triggers a rebuttable presumption the manufacturer or seller is not liable for injury arising out of the formulation/labeling/design. The presumption can be rebutted only if the plaintiff demonstrates the federal regulations were inadequate or the manufacturer withheld or misrepresented facts relevant to the federal determination.
As one of our other bloggers have recently revealed, Bexis recently went on vacation for two weeks. He was diligent, however, and pre-wrote two posts (not time sensitive) that appeared in his absence. As for the co-blogger’s quip about Bexis’ “active, muscular vacations” well, in this instance that’s probably right. For most of Bexis’ two-week absence, he was rafting through the Grand Canyon.
With Bexis otherwise occupied, the blog’s other denizens did an admirable job of keeping up with current developments in case law, but nonetheless items piled up in Bexis’ inbox awaiting his return. Most of them weren’t even judicial opinions. It’s time to empty that inbox.
Perhaps the most important development was the approval, on May 29, by the full Federal Judicial Conference’s Standing Committee on Rules of Practice and Procedure, of the discovery-related rules changes that we’ve been covering on the blog. Bexis has been heavily involved in this effort through the Lawyers for Civil Justice (“LCJ”), and LCJ sent him notice of the approval. We’d pass it along, except it includes internal LCJ business as well. So we’ll just hit the highlights.
First, there were no changes to the language of the proposed amendments themselves, which we have previously discussed. The only changes from the version published in the subcommittee’s agenda book were: (1) a new sentence in Note for Rule 26(b)(1) encouraging computer search technology (that is to say, predictive coding), and (2) modifying the Note for Rule 37(e) concerning the role of prejudice in subsection (e)(2). Thus, the main benefits of the amendments from our perspective remain:
Howard v. Zimmer is an old case. It was filed in the Northern District of Oklahoma in 2002 and got transferred to the Northern District of Ohio for the Sulzer Hip and Knee MDL. In 2010, after not participating in a class action settlement in 2003 and having plaintiff’s claims carved up on summary judgment
About a year ago, we discussed precedent establishing that off-label use can be, and often is, the medical standard of care. Conversely, that means that it could be considered medical malpractice not to prescribe certain off-label therapies. All of a sudden, that issue has popped up again, with two cases in the last week, both dealing with the off-label use of drugs in the abortion context.
Abortion-performing physicians have since developed a medication-abortion protocol using mifepristone that, although varying significantly from the FDA protocol, has become the de facto standard of care in Texas. This protocol, or one substantially identical, accounts for the vast majority of medication abortions performed nationwide since 2007. The new protocol [is] endorsed by the American College of Obstetricians and Gynecologists.
We have written many times on generic drug cases (here and here) and plaintiffs’ attempts to pin liability where none exists. You might think you have read enough on how innovator manufacturers should not and cannot be liable for injuries allegedly caused by generic products they neither made nor sold. You might even
Back in 2009, we posted that a recently enacted Oklahoma tort reform statute included a provision to eliminate most class action litigation under the notorious outlier case Ysbrand v. DaimlerChrysler Corp., 81 P.3d 618 (Okla. 2003), by forbidding nationwide classes to be brought under Oklahoma law. It seems to have worked. We haven’t heard of any Ysbrand shenanigans since then.
Well, the Oklahoma Supreme Court was plainly out of control in Ysbrand, and unfortunately it remains out of control to this day. Recently, in Douglas v. Cox Retirement Properties, Inc., ___ P.3d ___, 2013 WL 2407169 (Okla. June 4, 2013), the same court invalidated the entire tort reform statute, under the obscure (and rightly so) “single subject” rule for legislation. Funny how we never seem to see that invoked except when tort reform is at issue….
Douglas thus resurrects (at least potentially) the anything goes class action practice that existed under Ysbrand – as well as the raft of other litigation abuses that the Oklahoma legislature thought it had addressed in 2009. That’s bad news.
The silver lining is that, since practically the day Douglas was decided, legislators in Oklahoma, who passed the original bill by a substantial margins, have been quoted as saying that they would break up the original legislation into separate bills. Moreover, with Douglas reviving tort reform as an issue, additional “measures − to limit liability for gun manufacturers, adopt federal guidelines for expert witnesses and protect restaurants [from] obesity-related lawsuits” may also be on the agenda.
Umm … guys….Continue Reading Umm . . . While You’re At It
We were planning to write about the Bartlett oral argument today (we still might) when we learned about Howard v. Zimmer, Inc., ___ P.3d ___, 2013 WL 1130759 (Okla. March 19, 2013), in which the Supreme Court of one of the reddest states in the country, overruling prior precedent, held that, in general, violations of federal regulations suffice as a basis for negligence per se under Oklahoma law. Contrary to a stiff dissent, the court reached this result notwithstanding 21 U.S.C. §337(a) in which Congress expressed its intent that claimed violations of the FDCA only be enforced by the federal government. Id. at *6-7.
Prior Oklahoma precedent (rather like the law of Kentucky that we discussed earlier) had declined to permit state-law negligence per se to be brought on the basis of claimed violations of purely federal regulations. E.g., Claborn v. Plains Cotton Co-op. Ass’n, 211 P.3d 915 (Okla. App. 2009) (no negligence per se for claimed OSHA violations); Christian v. First Capital Bank, 147 P.3d 908 (Okla. App. 2006) (same; federal usury regulations on agricultural loans); Rosson v. Coburn, 876 P.2d 731 (Okla. App. 1994) (same; Medicaid abortion regulations).
Howard was, of course, a case where federal preemption had wiped out the usual product liability claims plaintiffs would normally bring against the defendant. A couple of years ago, in the same peripatetic case, the Sixth Circuit, in a non-precedential decision, allowed a “parallel claim” to escape preemption. Howard v. Sulzer Orthopedics, Inc., 382 Fed. Appx. 436 (6th Cir. 2010) (“Howard I”). Howard I, of course, did not purport to decide that such a parallel claim existed under state law. Id. at 442 (not reaching “whether Oklahoma law recognizes a negligence per se action based on violations of FDA
regulations”).
That was the Oklahoma Supreme Court’s job. Procedurally, at least, we think that the Tenth Circuit chose a better path in certifying the issue to that court.
Under Erie, certification was a proper avenue, although we have to wonder why the plaintiff didn’t do this during the prior appeal in the Sixth Circuit. Unlike Fulgenzi v. PLIVA, Inc., ___ F.3d ___, 2013 WL 949096 (6th Cir. March 13, 2013), at least, the Tenth Circuit respected the limited authority of federal courts in diversity actions and certified the negligence per se question rather than making up novel state law claims out of whole cloth. And “whole cloth” is the right description − there was nothing in prior Oklahoma law that remotely suggested what the happened next.
Make something up is exactly what Oklahoma Supreme Court did. Not only did it overrule all prior precedent barring federally based negligence per se as a general matter, it decided not to follow its own prior precedents precluding private allegations of alleged violations where a particular piece of legislation “indicate[es that] . . . the law-making body concerned itself specifically with the problem of who should be able to bring an action . . .and it then resolved not to confer a remedy on private individuals.” Holbert v. Echeverria, 744 P.2d 960, 965 (Okla. 1987); see also State ex rel. Oklahoma Bar Ass’n v. Mothershed, 264 P.3d 1197, 1227 (Okla. 2011) (where a statute “clearly places enforcement in the hands of governmental authorities the right of action is exclusively vested in such governmental authority”); Walls v. American Tobacco Co., 11 P.3d 626, 631 (Okla. 2000) (failure to make private cause of action retroactive was legislative intent not to permit earlier claims amounting to private enforcement).
Continue Reading Oklahoma Supreme Court OKs Federal Takeover of State Tort Law
Another remanded Aredia/Zometa case has apparently bitten the dust. See Ingram v. Novartis Pharmaceuticals Corp., No Civ-05-913-L, slip op. (W.D. Okla. July 18, 2012). Ingram threw out all of the plaintiff’s on warning causation grounds, a strong defense in this litigation, which involves a drug used to treat cancer. A basic problem that plaintiffs