Sanctions

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…You know somebody’s getting hammered. You just hope it’s the other side.

In Wilson v. Novartis Pharmaceuticals Corp., 2013 WL 593895 (N.D. Tex. Feb. 15, 2013), thankfully it was. The first line was a quote from Marmion: “Oh, what a tangled web we weave when first we practice to deceive!” We first heard that line in middle school, from a teacher who caught a miscreant classmate lying about failure to turn in a homework assignment.

It’s much worse when uttered by a federal judge.

Wilson was an Aredia/Zometa case – and, yes, it was pitched to us by defense counsel (Hollingsworth).   But the opinion is such a stark cautionary tale that we would have blogged about it anyway (assuming we otherwise found out).

Here’s what happened.

The plaintiff died.

That’s of course tragic for all immediately concerned, but it is hardly something to dismiss a case over.   Death is a fact of life, and the court system has evolved standard procedures for dealing with the mid-stream death of a party to litigation.…

Continue Reading When An Opinion Starts Out This Way….

We always try to keep things lively around here.  Law can sometimes be drudgery.  But we don’t ever want that type of atmosphere to seep into this blog.  That’s one of the reasons the blog is here: to discuss what we do without the boredoms and formalities that sometimes saturate our every-day practices.  So, here,

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Those of us who graduated from the University of Chicago are just a wee bit tired of the “place where fun goes to die” epithet. It’s true that U of C is an intensely intellectual place, and it’s true that Hyde Park is a long way from Chicago’s hot spots, and it’s true that the Cubs will continue to disappoint, and it’s true that when the Winter wind (“the Hawk”) blows in off Lake Michigan one prays for death, but … what was our point, anyway? Right – intellectual combat can be a fascinating spectator sport. It can be a moveable feast. It can even be, yes, fun.

In mid-February, the Law School put on a “Manhood in Law and Literature” conference. Here is part of what the conference announcement promised: “The conference will include two dramatic performances by members of the University of Chicago law School. The first scene, from the Caine Mutiny Court Martial by Herman Wouk, will feature Judge Richard Posner as Lt. Commander Queeg … and Judge Diane Wood as Captain Blakely. The second scene, from The Little Foxes by Lillian Hellman, will feature Professor Martha Nussbaum as Regina Hubbard Giddens and Professor Douglas Baird as her husband Horace. A musical interlude will be provided by Jajah Wu, Gary de Turck, and Martha Nussbaum.”

Sounds like fun, right? It gets better. An article describing the conference reveals that Professor Nussbaum sang “Can’t Help Lovin’ Dat Man” from Show Boat. Mind you, this is the same Martha Nussbaum who is one of the country’s most daring and creative philosophers, who is a hero to the Drug and Device Law Daughter because of her position on animal rights, and whose analysis of Plato’s Symposium has been stuck to our brain for over 25 years. We are genuinely sorry we missed this performance. Author Joyce Carol Oates also spoke (but did not sing) at the conference. She talked about Hemingway and boxing. Oates’s writings on boxing have given it an unexpected intellectual heft.…

Continue Reading There’ll Always Be Posner: Hemingway, Boxing, and Sanctions

The title pretty much says it all, but it is rare that you have a state supreme court weighing in on whether revocation of a pro hac is an appropriate sanction for plaintiffs’ lawyer shenanigans, so we call it to your attention. Recently, a North Carolina judge revoked the pro hac vice status of two (non-resident) plaintiffs’ lawyers in a case involving powdered Similac. See Sisk v. Transylvania Comm. Hosp., __ S.E.2d __, 2010 WL 2403438 (N.C. June 17, 2010). The facts alleged in the complaint are tragic – baby takes powdered Similac instead of sterile liquid Similac, baby is a neonate with a compromised immune system, baby develops meningitis. The plaintiffs sued the hospital – and we’ll refrain from making tired Transylvania jokes – and Abbott, the maker of Similac.

But the facts of the case and the legal claims asserted aren’t what caught our attention. Nope, it’s the way the trial court slammed the two non-Tarheel plaintiffs’ lawyers when the court learned that those lawyers had been in contact with Abbott’s consulting expert. It turns out that these plaintiffs (and Abbott) were no strangers to Similac litigation. In fact, these same lawyers had been involved in Similac litigation in Kentucky, in a case called Hill. After the Hill case settled, but before an order of dismissal was entered, the plaintiffs’ lawyers contacted and retained Abbott’s consulting expert with respect to another Similac case, called Froman. At the time of the contact, Abbott was not yet a party in the Froman case, but it was added later, leading to the disqualification of Abbott’s consulting expert in Froman. Abbott was understandably upset, and moved to disqualify plaintiffs’ counsel for their tactics. The Kentucky court refused to disqualify or sanction the lawyers, finding that they did not knowingly violate the Kentucky Rules of Professional Conduct.…

Continue Reading Plaintiffs’ Counsel Kiss Their Pro Hacs Goodbye After Messing With Defense Expert

Last week’s decision in Carr v. Tillery, 2010 WL 92487 (7th Cir. Jan. 12, 2010), was not, strictly speaking, a product liability case. But it involves some key players in that field, and a very key location. And, truth be told, the case appeals to the voyeur within us.

The players are former partners…