We have long subscribed to the notion that many of the cases we defend end up looking very like a trashy romance novel: you lied to me, you damaged me, and you abandoned me. We half expect Fabio to be called to the witness stand. It’s the lie that sets the drama in motion. Even when a product liability case includes claims of design defect and negligence, the real action resides in the claim of failure to warn. Understanding science can be hard. But everybody understands (or thinks they understand) a lie. What if there’s no lie? A lie aligns with a legal theory of misrepresentation. Without a lie, no cause of action lies and there certainly isn’t much of a heavy-breathing romance story, right? Well, we’d like to think so. But some plaintiffs have alleged that, even if there isn’t a flat-out lie, the company made products too attractive to resist. Lip-stick was applied to a pig. And, somehow, the plaintiff was divorced from all rational faculties. The story changes only a little: you seduced me, you damaged me, and you abandoned me.
We can talk about what a lie is, and we can agree that lies are bad. What’s a seduction? And what makes a seduction bad? Last week we were listening to an interview with Mike Nichols, the director of some great movies (Who’s Afraid of Virginia Woolf? The Graduate), and currently directing Philip Seymour Hoffman in Death of a Salesman on Broadway. Nichols attended (here comes the weekly shameless plug) the University of Chicago and, along with Elaine May, raised comic improvisation to high-ish art. No Nichols-May, and maybe no Second City. And no Saturday Night Live. And no Bill Murray. And no Adam Sandler. (Say, wait a minute ….) Nichols talked about the intricacies of improvisation. Improvisation, by the way, is something that most litigators should study more. More “Yes-and”-ing and less “No, you’re wrong”-ing, and we’d be more successful and less miserable. Nichols realized that all scenes can be broken down into three categories: seductions, fights, and negotiations. For us, that was what NPR calls a “driveway moment.” We had arrived home, but we stayed in the car to hear the end of the interview. This idea of things breaking down into seductions, fights, and negotiations seemed like a key that could unlock a very big door. Most of what we do as lawyers falls into those three categories. (At least for litigators. We’re not sure how much seduction is going on over at the Tax Group.) Seduction can be effective. Seduction can be fun. But can seduction be a cause of action, or save an otherwise defective cause of action?
We do not think so. Few plaintiff theories are as overused, overblown, and, ahem, overpromoted as overpromotion. Whenever we see a case that gives any credence to an overpromotion theory, we have mixed emotions the same way most tv critics have mixed emotions about the new HBO show Newsroom: we cannot decide if it is horrible or merely stupid. Plaintiffs claim that a drug or device manufacturer overpromoted a product when the plaintiffs do not have anything real to address. There is no data to support a finding of seduction. There might be 50 Shades of Gray, but there’s no epidemiology supporting any of them. Jurors are finders of fact. An overpromotion theory essentially says that facts do not matter. How can a jury find that overpromotion — whether the “over” pertains to quantity or quality of the promotion — overwhelmed someone’s ability to make a rational choice? Isn’t that assessment especially hard when, because of the learned intermediary rule, the jury is being asked to discern whether overpromotion made a doctor stop thinking like a doctor?Continue Reading D.D.C. Finds No Overpromotion Exception to Learned Intermediary Doctrine