Tolling

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The big developments – the Caronia opinion, and the Supreme Court’s grant of certiorari in Bartlett – along with other distractions, such as our ABA Blawg 100 award, have left us with a pile of unblogged stuff that we think is of interest to our readers.  Today we’re taking a crack at that pile.  We apologize in advance if these discussions aren’t as detailed (and thus aren’t as useful) as our usual posts.
California Leans Daubert
California has long gone its merry, idiosyncratic way in the Daubert/Frye wars.  The California Supreme Court has fashioned something called “Kelly/Leahy” after the names of the two most important opinions.  However, in Sargon Enterprises, Inc. v. University of Southern California, ___ P.3d ___, 2012 WL 5897314 (Cal. Nov. 26, 2012), the court spoke about California expert admissibility with a distinct Daubert accent.  Sargon (great name – it evokes space aliens, unknown elements, or even ancient Sumer) is a drug/medical device case only in the loosest sense.  It’s about an alleged “breach of a contract for the [defendant] to clinically test a new implant the [plaintiff] had patented.”  Id. at *1.  The expert testimony at issue involved lost profits.  Id. at *2.  The testimony was vague and tautological, involving the expert’s supposition that the defendant, because it was “innovative,” would have joined the “big six” dental implant manufacturers.  But he measured “innovation” according to “the proof is in the pudding” – successful companies were “innovative,” less successful ones less so.  Why was the plaintiff company “innovative” even though it was small?  That opinion was a bunch of gobbledygook and jargon amounting to “because I think so.”  See Id. at *3-5.  The trial court threw the expert out.  The Court of Appeals reversed and found the testimony admissible, then the California Supreme Court granted review.
This blog doesn’t care all that much about the ins and outs of calculating lost profits, but we do care about the standards for expert admissibility.  Sargon is noteworthy for the court’s repeated reliance on the federal precedent that we have (usually) come to know and love, starting with “[u]nder California law,
trial courts have a substantial ‘gatekeeping’ responsibility.”  Sargon, 2012 WL 5897314, at *14 (footnote citing Joiner and Kuhmo Tire omitted).  That leads to “[e]xclusion of expert opinions that rest on guess, surmise or conjecture is an inherent corollary to the foundational predicate for admission of the expert testimony.”  Id.Continue Reading Stuff

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If you make a habit of checking our Cross-Jurisdictional Class Action Tolling scorecard on a daily basis, then you already know that the Louisiana Supreme Court recently skewered cross-jurisdictional tolling.  They beat it with a red stick.  But let’s assume for a moment that you have a life.  So blenderize a Hurricane, fry up some

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Yeah, we know that Joe Hollingsworth − among his many other talents − likes to publicize his wins (who doesn’t, we plead guilty).  But that’s okay.  When he sends us stuff from the Aredia/Zometa wars that’s worth publicizing, we’ll use it; otherwise, we blog about something else.  It just so happens that the latest items…

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Over a decade ago, Bexis convinced the Fourth Circuit to predict that Virginia would reject cross-jurisdictional class action tolling – the notion that a meritless class action filed in one jurisdiction could suspend the running of the statute of limitations in another jurisdiction.  See Wade v. Danek Medical, Inc., 182 F.3d 281 (4th Cir.1999).  But what was won in Wade had a hard time staying won.  Some federal courts, deviating from their federalist duty to construe state law conservatively, nonetheless made conflicting predictions that, maybe Virginia law (despite not recognizing class actions at all) would allow cross-jurisdictional tolling.  See Torkie-Tork v. Wyeth, 739 F. Supp.2d 887 (E.D. Va. 2010); Shimari v. CACI International, Inc., 2008 WL 7348184 (E.D. Va. Nov. 25, 2008).
But not all courts.  In In re Fosamax Products Liability Litigation, 694 F. Supp.2d 253 (S.D.N.Y. 2010), the court followed Wade in another multidistrict litigation (Wade had followed an MDL remand).  The plaintiffs appealed, and the Second Circuit certified the question to the Virginia Supreme Court, which accepted the appeal.
Virginia’s highest court has now killed cross-jurisdictional class action tolling dead in that jurisdiction.  Casey v. Merck & Co., No. 111438, slip op. (Va. Mar. 2, 2012).  Good riddance, we say.  It was a long enough time coming – as was the underlying Fosamax class action decision.  The plaintiffs wanted over two years of tolling – just for filing a meritless complaint – because it took various courts (it was an MDL, after all) from September 15, 2005 until January 28, 2008 to dismiss the patently bogus personal injury class action.Continue Reading At Long Last – Virginia Definitively Rejects Class Action Tolling

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Cross-jurisdictional class action tolling.  Even though Bexis invented the phrase, we hate it.  We’ve lambasted that concept many times on this blog, see here.  Basically:  (1) the law should not reward the filing of meritless class actions by tolling the statute of limitations; (2) lawyers and courts in one jurisdiction should not be allowed to manipulate the statutes of limitations of other jurisdictions; and (3) each state is a sovereign, and should be able to set its own tolling (and other) rules without outside interference.  In fact, we’re so anti-cross-jurisdictional class action tolling that we maintain a scorecard concerning this rather arcane legal topic.
Another peeve that we’ve occasionally petted is the tendency of some courts – particularly in the Second Circuit – to assume that they know more about the law of other states than do those other states’ courts.
Those two threads come together in Casey v. Merck & Co., ___ F.3d ___, 2011 WL 3375104 (2d Cir. Aug. 5, 2011), where for once the Second Circuit decided not to play the “New Yorkers know best” card and instead certified the cross-jurisdictional class action tolling question to the Virginia Supreme Court.
Once again, the issue in dispute goes back to our Bone Screw days – when we first learned to hate cross-jurisdictional class action tolling.  The Bone Screw MDL plaintiffs filed an unsuccessful nation-wide class action (which back then was a lot less futile than personal injury class actions have since become).  Despite losing class certification, tardy Bone Screw plaintiffs around the country still claimed that their states’ statutes of limitations should be considered tolled by the unsuccessful MDL class action.
They lost.Continue Reading Cross-Jurisdictional Tolling Certified

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We hate to start the New Year by reporting on a dismal case but, as we said on Friday, the Montana Supreme Court’s decision in Stevens v. Novartis Pharmaceuticals Corp., 2010 MT 282 (Montana December 30, 2010), adds to this Winter of discontent. Once a Supreme Court comes out with a decision, you’re stuck with it. Smart lawyers try to make the best of such decisions, even when they are mostly bad news. Bexis is a smart lawyer, so that’s what he did on Friday, emphasizing the Montana Supreme Court’s reaffirmation of the learned intermediary rule.
And now we must confront the ugly bits in the opinion.
Before we do that, let’s confess to a smidgen of exasperation. For a couple of weeks in a row, the Monday column has had to report bad opinions. Last week it was the horrific Bausch case from the Seventh Circuit. We’re starting to feel like Stuart Scott from ESPN’s Sportscenter, when he was always saddled with providing the ‘highlights’ for the crappiest football games of the week. This was a while ago — back then, the worst teams were Tampa Bay, Green Bay, and Pittsburgh. (An LA Times sports columnist called the Steelers “Pitt Bay” to keep the Bay theme going when listing the Bottom 5 NFL teams). Poor Stuart Scott dutifully struggled to say something interesting about the latest interceptions heaved by the likes of Bubby Brister or Vinny Testaverde. Maybe that grim parade is what prompted Scott to resort to endless catch-phrases: “cool as the other side of the pillow,” “all that and a bag of chips,” and, of course, “Boo-yah.”
We wish we could dismiss the Stevens case with a few catch-phrases, but it won’t be so easy. The plaintiff claimed that Novartis had failed to warn that Zometa could cause osteonecrosis of the jaw (ONJ). The plaintiff had begun taking Zometa in 2002 for lymphoma. In early 2005, the plaintiff was diagnosed with ONJ and stopped taking Zometa. ONJ is a progressive disease, so the plaintiff’s problems with it continued. More happily, the plaintiff’s cancer “was in remission, as it has been ever since.” Slip op. at 6.Continue Reading A Big Boo (Not “Boo-Yah”) for the Montana Supreme Court

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On this last day of the 2010, we’d like to wish our readers a happy, healthy, and prosperous new year.  To all our defense side readers, we further wish you success in winning your cases.

Now, because we are the Drug and Device Law Blog, we can’t just leave our post just at that.  Two…

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We’ve previously argued that courts should eliminate class action tolling of the statute of limitations in the mass tort context. In a nutshell, we see the rule first announced in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) – allowing for tolling of the statute of limitations for all members of…

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Here’s more proof (as if more were needed) that Herrmann’s a step slow. (And it’s again only Herrmann. This post relates to the Vioxx settlement, and Bexis is playing no role in drafting this.)
We posted last week about the Vioxx settlement. The aspect of the settlement that interested us most was finality: After AmChem…

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