Usually, when res judicata comes up in our cases, we are trying to fend it off. Luckily, non-mutual offensive res judicata is rarely recognized, so plaintiffs usually fail when trying to preclude the drug or device manufacturer from putting up a full defense based on a prior ruling or verdict in a different case. Occasionally, in serial product liability litigation, we find a plaintiff trying to sue over the same injury twice, but that rarely requires motions, let alone motions based on res judicata. Today, however, we are discussing a Georgia state court case where a drug company’s settlement with Georgia and other governmental entities in a longstanding federal case precluded eight Georgians from suing the same company on behalf of Georgia. Were we to channel a fellow blogger, we might draw some parallel to “The Walking Dead,” which is filmed in Georgia and had been based in Georgia until season 5 (when the gang headed up to Virginia). We might say something about how related cases that pop up after an adjudication on the merits are like “walkers” and have to be disposed of accordingly. We might inject some spoilers by mentioning which main character got shot in the most recent episode and which main character is rumored to die in the next episode. We might even connect these events to an earlier failure to resolve an earlier dispute more definitively. Instead, we will just stick to the case.

Jordan v. State, No. A15A1733, 2016 Ga. App. LEXIS 176 (Ga. App. Mar. 23, 2016), does not have the drug manufacturer as a party to the appeal because it was the State of Georgia that filed and won the motion to dismiss below (although treated as a motion for summary judgment on appeal). This procedural quirk flows from the nature of qui tam litigation. In 2004, a relator named Starr filed a suit in the Eastern District of Pennsylvania against her former employer claiming that its marketing of a prescription anti-psychotic for off-label uses created liability under various statutes, including the federal False Claims Act for reimbursement by various governmental entities. (Some of this background is presented in Jordan, but some details are added from public information.) Over time, other relators filed similar cases, the United States intervened, and Starr’s complaint was amended to include claims under the later-enacted Georgia False Medicaid Claims Act (GFMCA) and various similar state statutes. In late 2013, there was a massive settlement of criminal and civil cases between the manufacturer, the United States, and a number of states—including Georgia—resulting in, among other things, payment of millions of dollars to Georgia and a dismissal with prejudice of the Starr case.


Continue Reading Some Good Georgian Res Judicata

Today is the day when we will learn whether the Governor of Louisiana will enter the 2016 presidential race.  That reminds us of Louisiana’s rather colorful collection of politicians, including Huey Long and Edwin Edwards. You probably already know that Louisiana boasts an unrivaled array of colorful characters in every field of endeavor, from chefs (Emeril Lagasse, Paul Prudhomme), sports (Peyton Manning, Pistol Pete Maravich),  music (Louis Armstrong, Dr. John – and about a million others), and philosophy (Huey Newton, Uncle Si).  Louisiana has added its own spicy flavor to the law, as well.  If you asked drug and device defense lawyers who is the single most flamboyant, unpredictable plaintiff lawyer in the land, we bet a certain lawyer from Louisiana would garner the most votes.  Pelican State courts have also given us some of the highest highs and lowest lows in product liability litigation.

Examples of both such highs and such lows reside in the recent case of Ezeb v. Sandoz Pharmaceuticals, No. 2015-C-0204 (Ct. App, 4th Cir. La June 17, 2015).  What we have in the Ezeb case is one of the very worst summary judgment rulings by a court we have ever seen, ultimately reversed by an eminently sensible appellate court decision.  Usually when we talk about a bad summary judgment decision, we are bemoaning a court’s failure to grant some virtuous defendant a ruling that dismisses some ill-conceived case.  But in Ezeb the trial court granted partial summary judgment to a plaintiff on grounds so wrong-headed as to beggar belief.

While we supply the requisite procedural background, you might want to supply appropriate background music by a Louisiana legend – perhaps the smooth stylings of Harry Connick, Jr., Gino Delafose, or Lil Wayne.  In or about 1990, the plaintiff filed a lawsuit against numerous doctors, hospitals, and pharmaceutical companies claiming that they played a role in overdosing him with a drug and thereby causing him various injuries.  He sued the medical professionals for negligence, and sued the drug manufacturer under the Louisiana Products Liability Act (LPLA) for failing to warn of the side effects of the medication.  One of the defendants was Caremark, the company that employed a treating nurse at the medical center where the plaintiff was administered the medicine. The plaintiff had alleged that the nurse played some role in the overdose.  In 2008 (so now we are 18 years after the case was initiated), Caremark filed a motion for summary judgment.  Reading between the lines of the decision, it appears that Caremark argued that there was no evidence establishing that its nurse was responsible for the dosing decision.  Caremark’s summary judgment motion was unopposed, and the court, not surprisingly, granted the motion.   All of the plaintiff’s claims against Caremark were dismissed with prejudice.


Continue Reading Louisiana Appellate Court Overturns Improper Application of “Law of the Case” Doctrine

We typically leave it to others to review movies or television shows in the course of a post.  Sure, we will throw in a quote or reference from time to time, but that is about it.  We had the misfortune to watch the purported “thriller” I, Frankenstein recently and we thought we should share.  The film had more holes than a hunk of emmentaler.  It featured Aaron Eckhardt in another film with his face disfigured and Miranda Otto in a role not befitting a shieldmaiden of Rohan.  Its plot was tied loosely to the familiar Frankenstein story, itself based on older golem tales. Doctor Victor Frankenstein combined parts of corpses into a monster, which he animated with the charge from electric eels (without explanation of their importation to Eastern Europe).  The monster is not human, mortal, or terribly pleased to exist at all.  (He also does not enjoy hot soup ladled into his lap.)  Things go wrong, many years pass, and there is some ludicrous eternal battle between demons and gargoyles/angels into which the monster becomes embroiled.  Anyway, with omitted air quotes throughout, the monster is special because he was dead, is now alive, lacks a soul, and cannot die (except maybe if a demon skewers him).  The movie ends without anything particularly surprising or interesting happening, let alone anything that would make the viewer care about any character in it.

The plaintiff in Keeton v. Ethicon, Inc., No. 2:13-cv-24276, 2014 U.S. Dist. LEXIS 135327 (S.D. W. Va. Aug. 8, 2014), tried to reanimate her claim with a “Frankensteined” complaint—the court’s novel term and inspiration for our oh-so-clever post.  In, perhaps, a mild surprise, she was utterly unsuccessful, at least if the Report and Recommendation (R&R) of the Magistrate is followed.  It looks like it took more effort that it should have, in part because the plaintiff was now going pro se, and the recommended dismissal of the pending case would be without prejudice for some reason, but res judicata acted as monster bane.


Continue Reading Pre-Halloween Demise of a Frankenstein Plaintiff