We like bright lines in the law. They streamline arguments for lawyers and, more important, they make it easier for non-lawyers to conduct their affairs with some degree of predictability. Rear-end a car and you’re liable, even if the other guy stopped short. Leave a sponge behind in a patient’s abdomen, and you and your operative team are on the hook. The thing speaks for itself, and the thing it speaks is very bad for your defense case. Utter a negative statement about someone in a courtroom, and you’re immune from libel liability. Say the same thing on the courthouse steps, and you might be in trouble. Sell a pharmaceutical product with a federally approved label, and when someone sues you for failure to warn you’re … uh oh. Thanks to the Supreme Court’s opinion in Wyeth v. Levine, you’re still in the soup if you could have added warnings via the Changes Being Effected (CBE) provision. You might not like that rule, but at least it’s clear, right? Wrong. Recent opinions have come out on opposite sides as to what would constitute “clear evidence” that the FDA would have rejected an additional warning, or even who gets to decide that ‘fact.’
When we first set foot on the University of Chicago Law School campus back in 1982, Chicago sports were a mess. But quickly – certainly more quickly than our ability to grasp the Rule in Shelley’s Case, Last Clear Chance, or the distinction between taking under false pretenses vs. larceny by trick – Chicago sports teams got better. Much better. The perpetually mediocre White Sox, who shared the South Side with U of C (no matter what former U of C law professor POTUS says about his glee that the Cubs are in the World Series, don’t believe him; he roots for the White Sox and any self-respecting fan of that team is miserable over the Cubbies’ success) (and if either presidential candidate dons a Cubs cap even though we know full well they root for New York’s arrogant American League franchise, we will barf like a DePaul student who shot-gunned too many cans of Old Style; we don’t care if it’s complicated), started “winning ugly” and made it to the playoffs. So did the Cubs, though when Tim Flannery’s weak little ground ball dribbled “right between [Leon Durham’s] legs!”, we knew that the Billy Goat curse was still strong and that the Padres would ultimately knock out the home town team. And so they did. Tragedy still tainted triumphs. But triumph was unalloyed in 1985, when Da Bears assembled the most fearsome defense of all time and captured the team’s only Super Bowl title. (Please do not refer to the Bears as the Monsters of the Midway. That title properly belongs to the University of Chicago Maroons, a college football team that, in the early part of the last century, brought home many wins and the very first Heisman Trophy.) Oh, we almost forgot – in 1984 the Bulls drafted a guard out of North Carolina who looked like he might be a pretty good basketball player.
Sports weren’t the only thing that improved on our law school watch. The Seventh Circuit started raiding the U of C faculty. Posner became a judge. Then Easterbrook. Then Wood. If there is an appellate court anywhere that approaches the Seventh Circuit in terms of pure intellectual wattage, we’d be frightened to hear about it. Seventh Circuit opinions come with doctrinal heft, sharp insights, brave creativity, and the occasional ounce of craziness. (Remember Posner’s drawing of an ostrich with its head in the ground?) Today’s case is more interesting than it has any right to be. The plaintiff in Wagner v. Teva Pharmaceuticals USA, Inc., — F.3d —, 2016 U.S. App. LEXIS (7th Cir. Oct. 18, 2016), was pro se, though she was also a lawyer. She had taken both brand name and generic versions of hormone therapy drugs and claimed they caused her to develop breast cancer. The complaint included causes of action under Wisconsin law for defective product and failure to warn. The generic manufacturers argued that the claims were preempted by federal law, relying primarily on the SCOTUS opinions in Mensing and Bartlett. The district judge agreed with the defendants and granted their motion for judgment on the pleadings. The plaintiff appealed to the Seventh Circuit, arguing that the passage of the Food and Drug Administration Amendments Act of 2007 (FDAAA) meant that her claims were not preempted. The plaintiff also argued that her claims are not preempted to the extent they are based upon the failure to update the generic drug labels to match the updated labels on the brand name drug.