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The recent magistrate’s decision in Fecho v. Eli Lilly & Co., 2012 WL 6681895 (Mag. D. Mass. Dec. 21, 2012) (“Fecho II”), isn’t good, but it could have been far worse.  While the decision stretches prescription drug warning causation to the breaking point, at least it didn’t do what the plaintiffs sought, which was the wholesale importation of asbestos-style tactics of proving causation into drug litigation.  Still, to escape summary judgment required unprecedented application of both the Federal Rules of Evidence and Pennsylvania law (although not the law ordinarily applied in product liability cases).

Here’s what went on.  Fecho is a testament to old litigation not dying, but spreading to different injury allegations.  Fecho involves DES.  That’s right old-fashioned diethylstilbestrol – prohibited from use in pregnant women by the FDA since 1971.  As everyone in our line of work knows, DES is linked to a rare type of cancer in young women exposed in utero – a cancer that developed around the time of puberty.

That development, of course, brought about a wave of litigation over events that happened – due to the delay in cancer development – between one and three decades earlier.  Because DES was never patented, many DES plaintiffs could not determine who made the drug they were exposed to.  That proof problem led pro-plaintiff courts in the 1980s to invent “market share liability,” which all in all was probably the radical and ill-conceived expansion of tort liability of our legal lifetimes.  Fortunately, most states didn’t adopt it.

But time passes, and with the youngest of the so-called “DES daughters” now over 40, one would expect the statute of limitations finally to put this litigation to bed – NOT!

Rather than finding something else to sue over, plaintiffs (some of them, anyway) are now claiming that the same in utero exposure to DES causes breast cancer.  Unlike the DES litigation of the 1980s and 1990s, the medical causation science for this new theory isn’t very good, being limited to a couple of studies that plaintiffs’ experts have to massage thoroughly in order to discover any statistically significant increase in any “cohort.”  See Fecho v. Eli
Lilly & Co., 2012 WL 194419, at *2 (Mag. D. Mass. Jan. 20, 2012) (expert found statistical significance in one “subset” of first study that “could be characterized as too thin” only after “control[ing] for” unspecified “confounding factors”); id. (second study had an even “smaller hazard ratio,” so the expert “discounted an excess risk calculation in preference for a proportionate hazards model”) (“Fecho I”).  Not only that, but there’s no distinction between purported DES breast cancer and any other breast cancer.  Id. (“temporal relationship between the exposure and the development of the disease . . . tracks the natural age at which breast cancer typically appears”).  In short, DES breast cancer litigation not only has all the causation problems of earlier DES litigation, but junk medical causation science has replaced the prior “signature disease.”Continue Reading Asbestos Causation Tactics And Pharmaceutical Litigation

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The Pennsylvania Supreme Court decided a product liability case yesterday:  Reott v. Asia Trend, Inc., Nos. 27-30 WAP 2011, slip op. (Pa. Nov. 26, 2012).  First of all – no, Reott did not answer, or even mention, the foundational Restatement (Second) vs. Restatement (Third) question, since the case: (1) involved only a manufacturing defect (missing stitching), as to which both restatements agree strict liability should apply, and (2) the element of product defect was not even at issue, since a directed verdict on manufacturing defect had been entered and not appealed.  Actually, the point about no mention is not exactly right, since Justice Saylor’s concurring opinion made clear that as to other types of “defects” that question remains open.
The second thing to note about Reott, from our perspective, is that its holdings about plaintiff conduct and causation issues are relevant to prescription medical product cases mostly by analogy because in Hahn v. Richter, 673 A.2d 888 (Pa. 1996), the same court barred strict liability (at least for design and warning – manufacturing defect claims are uncertain) in cases involving such products.  But there are occasional manufacturing defect cases involving
prescription drugs, and principles of sole causation and superseding cause are also found in negligence, so Reott is worth a look, particularly by Pennsylvania practitioners.
Reott involved that most non-prescription sort of product – a tree stand.  If you don’t hunt, then that product name probably doesn’t do much for you either.  A tree stand is just what it sounds like, a collapsible platform placed in a tree as a location from which hunters can watch for game (usually, but not always deer).  To fit around the tree, a tree stand has a locking strap.  The plaintiff, an experienced hunter, had devised his own method to take the slack out of a locking strap so that the tree stand wouldn’t wiggle.  In the words of the court:

[W]hile bear hugging the tree, [plaintiff] raised himself on his toes and came down on the platform.  According to [plaintiff], this self- taught maneuver, known as “setting the stand,” is used to secure the stand firmly in the tree by taking any slack out of the locking strap.  [Plaintiff][ had performed this maneuver, in his estimation, hundreds of times on other stands.

Reott, slip op. at 3-4.  Unfortunately, this time the locking strap (with the undisputed manufacturing defect) “broke, and [plaintiff] fell to the ground.”  Id. at 4.  Even more  unfortunately, plaintiff was 25 feet up in the tree when that happened.Continue Reading Causation and Plaintiff’s Conduct in Pennsylvania Strict Liability

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If you’re a defendant, you don’t want to be in the
Philadelphia Court of Common Pleas – for well-known
reasons.  One of those reasons is
blatant, plaintiff-friendly forum shopping. 
As ATRA’s latest report states:
Forum Shopping: The Philly Phenomenon
Pennsylvania law provides significant flexibility to
plaintiffs’ lawyers as to where to file their cases.  For

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We posted before about a case, Sikkelee v. Precision Airmotive, Corp., ___ F. Supp.2d ___, 2012 WL 2552243 (M.D. Pa. July 3, 2012), in which the court persisted in applying the Restatement Second §402A rather than Restatement (Third) of Torts, Products Liability §2 (1998), despite not one, but two, published Third Circuit opinions predicting…

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We’ve just been informed that the Commonwealth Court (a specialized state-wide appellate court dealing mostly with governmental matters) has unanimously affirmed the dismissal of the “Commonwealth’s” (really private contingent fee lawyers masquerading as the government) off-label promotion litigation about Risperdal.  See Commonwealth v. Ortho-McNeil-Janssen, No. 802 C.D. 2011, slip op. (Pa. Commw. July 26,…

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            It’s a beautiful day in the Philadelphia area.  The humidity is down, the sun is out, the breeze is delightful.  If we were morning radio jocks, we’d be telling you to drop your briefcases and laptops and pick up your Frisbees, suntan lotion and beach chairs and head for the nearest park, lake or

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We’re Pennsylvania lawyers (at least we started that way) so we figure we can be excused for following Pennsylvania law more closely than other states.  One of the key topics our Pennsylvania law posts have covered is the continuing saga of the Third Restatement of Torts − particularly in the federal courts.
Basically, in Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), three justices of the Pennsylvania Supreme Court (Saylor, Castile (CJ) and Eakin) joined a concurring opinion stating that Pennsylvania’s old “super-strict” liability regime in place since Azzarello v. Black Brothers Co., 391 A.2d 1020, 1022 (Pa. 1978), was antiquated, unworkable, and should be replaced by the negligence-based standard of Restatement (Third) of Torts, Products Liability §2 (1998).  Only a couple of justices, no longer on the Court, disagreed.  However, since the issue was not before the court directly in Phillips, the opinion was a concurrence only and several justices did not take any position.  Bexis knows.  He wrote the amicus brief for PLAC in Phillips that addressed the Restatement Third issue.
It looked like the Supreme Court was going to resolve the question when it took a case called Bugosh v. I.U. North America.  However, Bugosh was an asbestos case and the only appellants were intermediate sellers − not product manufacturers with which §2 of the Third Restatement (not to mention the Phillips concurrence) is primarily concerned.  After this became clear at oral argument, the Pennsylvania Supreme Court dismissed Bugosh as improvidently granted.  See Bugosh v. I.U. North America, Inc., 942 A.2d 897 (Pa. 2008) (order dismissing appeal).  Again, Bexis knows.  He participated in Bugosh for PLAC, and tried to help defense counsel grapple (unavailingly) with the intermediate seller issue.
Meanwhile the Third Circuit, in Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009), while Bugosh was pending, had the same issue in a case where the plaintiff (a bystander/unintended user) would benefit from the adoption of the Third Restatement.  After first trying, and failing, to get the Pennsylvania Supreme Court to take a certified appeal, the Third Circuit predicted the adoption of the Third Restatement as Pennsylvania law.  We described Berrier here.  Again Bexis participated for PLAC, this time arguing that a federal court should not predict such a momentous change in Pennsylvania law, and that the defendant clearly won under existing law, but that if the court were to reach the issue the Third Restatement was preferable to Azzarello.
Shortly after the Berrier prediction, Bugosh was dismissed.  The defendant unsuccessfully sought reconsideration (technically recall of the mandate, given the timing), but the Third Circuit refused, so its prediction stood, notwithstanding Bugosh.  We described all this here.Continue Reading Sickly Restatement Rationales Persist in Pennsylvania

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The thing about personal injury claims is that they’re personal. Each case has distinctive details, such as why the plaintiff used the product, what she relied on, what harm resulted, and what caused the harm.  That’s why personal injury claims are not fit for class treatment.  They are almost never certified.
In fact, nowadays, they are not only rejected; they are rejected hard.  That’s what happened in Haggard v. Endogastric Solutions, Inc., 2012 U.S. Dist. LEXIS 89767 (W.D. Pa. June 28, 2012).  The defendant manufactures a device (EsophyX) that is inserted without an incision to treat GERD.  The plaintiff had it inserted, choosing it over a competitor’s surgically implanted device (Nissen).  When the device didn’t work, his doctor couldn’t completely remove it, and the plaintiff claimed that this eliminated certain other treatment options that had been available to him.  He reluctantly tried the competitor’s Nissen device, but his symptoms got worse.  Plaintiff then filed his class action, claiming that the defendant had misrepresented that the insertion procedure was reversible, when in fact it was only “revisable” (apparently something less than reversible).  Id. at *1-3.
If this sounds like a situation rife with unique personal facts, that’s because it is.  And so plaintiff’s attempt to put a class together failed miserably.
Plaintiff first tried to certify a class that consisted of everyone who had used the defendant’s device.  The court rejected this class for a bunch of reasons, many of which are obvious.  It failed the “typicality” requirement.  The class rep had “marked” differences with the other putative class members as to the information received and relied upon, as well as the harm suffered, particularly given that plaintiff admitted that, unlike with him, the device worked for most of the class members:

Evidence of record indicates there would be numerous, inevitable questions regarding the information received by individual patients – from their physicians or other sources – and their reliance on particular representations. . . . More importantly for purposes of a typicality analysis, Plaintiff’s theory of harm because he was informed as to and relied on representations of its “reversibility” in electing a surgical procedure is harm of a fundamentally different nature – i.e., it is different in kind – from the inchoate harm, if any, of being subject to misrepresentations in the abstract.

Id. at *14, *17.Continue Reading Another Personal Injury Class Action Goes Down in Flames

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When we saw the first one we thought, that’s odd, but it’s mostly a malpractice claim pretty far from our sweet spot.  When we saw the second one, we thought, maybe we should blog about this now….  But the result was mostly unfavorable, and other, more significant things were happening.  But now that we’ve seen…

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