The federal right-to-try (“RTT”) adventure, which we chronicled here, and here, concluded not long ago with the final passage of S. 204, signed into law on May 30.  The final bill is not materially different from the house draft we analyzed earlier.  The final bill cleaned up some of the previous hastily-drafted language, such as tying the definition of “life threatening” to prior regulations dealing with that subject.  The two provisions of most interest to us – concerning RTT adverse events and immunity from civil suits – had been pretty good before, and stayed that way.  Reporting requirements became slightly less onerous.  A “sense of the Senate” section at the end ensures no resurrection of the Abigail Alliance foolishness regarding a constitutional right to medications.  So it’s done, but our basic skepticism remains unchanged – we don’t think that the entire exercise was worth the candle, given existing FDA compassionate use regulations, and we strongly doubt that many people, if anyone, will be helped.  Right to try was a right-wing shiny object, a distraction from the serious problems stemming from our chaotic approach to health care.

According to something we read recently on the FDA Law Blog, a “New Vermont Law Seeks to Allow Wholesale Importation of Drugs from Canada.”  We view that legislation similarly to RTT.  Canadian drug importation is a left-wing shiny object, also distracting politicians from the country’s serious health care problems.  Think about it.  California alone has a greater population than Canada.  Any large-scale importation of cheaper Canadian drugs to the United States would almost immediately cause shortages in Canada.  Given the current tit for tat, we would expect Canada to react by slapping an export tariff on prescription drugs to force United States consumers to continue paying for the inefficiencies in our health care delivery system.

But putting stupid, unnecessary trade wars to one side, let’s focus on our sandbox – product liability.  What would the product liability effects of the Vermont program, as created by the new legislation, be?

The legislation authorizes the state to design a program whereby, “a State agency that shall either become a licensed drug wholesaler or contract with a licensed drug wholesaler” in order to import prescription drugs from Canada to Vermont – all in supposed compliance with federal law. 18 Vt. S.A. §4651(a)(1).  The arrangement is to “use Canadian prescription drug suppliers regulated under the laws of Canada.”  Id. §4651(a)(2).  While the imported Canadian drugs are supposed to meet FDA “safety, effectiveness, and other” standards, id. §4651(a)(3), there is no requirement that their Canadian labeling be altered.  The Vermont state agency:

Shall . . . (1) become licensed as a wholesaler or enter into a contract with a Vermont-licensed wholesaler; (2) contract with one or more Vermont-licensed distributors; (3) contract with one or more licensed and regulated Canadian suppliers; [and] (4) engage with health insurance plans, employers, pharmacies, health care providers, and consumers. . . .

Id. §4655(1-4).  Nowhere in the statute are the ultimate manufacturers of the Canadian drugs even mentioned.  The statute does not envision any contact between the drug companies and the state importing agency.  How does Vermont expect to handle drug recalls?  Controlled substances?

The statute also raises interesting product liability questions.  This being Vermont, the statute has no provisions creating any sort of immunity from suit.  So it appears to us that, by inserting one of its agencies into the chain of drug distribution, Vermont has exposed itself to product liability suits should any of the drugs it sells cause injury.  Equally important, the statutory scheme probably makes the state the prime target of any such litigation.  In all likelihood, none of the drug manufacturers will be subject to personal jurisdiction in Vermont.  They will not be selling any drugs in Vermont.  They will have labeled their drugs in accordance with Canadian, not American, regulations.  They will have no notice of their drugs being diverted from Canada to Vermont.  In terms of Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), and Daimler AG v. Bauman, 571 U.S. 117 (2014), the drugs will enter Vermont solely by virtue of the conduct of unrelated third persons.

Just as we pointed out flaws with the immunity provisions of various versions of right-to-try statutes, the immunity issues here also implicate the viability of the Vermont program, albeit in a different fashion. With no statutory immunity, and no ability to obtain jurisdiction over drug manufacturers for the Canadian market, the statute paints a great, big target on the back of the state importing agency, as the deepest pocketed potential defendant available to all potential plaintiffs who might take the drugs thereby imported into the state.  Sovereign immunity won’t help, since the Vermont scheme has the state engaging in commerce, not in any traditional governmental role.

Both sides of the political spectrum unfortunately share an affinity for largely meaningless, feel-good prescription drug-related schemes.  Importing drugs from the Great White North, like the Vermont program envisions, would be rife with problems, including saddling states with product liability.  Maybe that is inevitable where states seek to act as commercial entities.

This post come from the non-Reed Smith part of the blog.

In Otis-Wisher v. Medtronic, Inc., 2015 U.S. App. LEXIS 9565 (2d Cir. June 9, 2015), an Infuse device decision, the Second Circuit offered its thoughts on the viability of parallel violation claims based on allegedly misleading off-label promotion.  In short, they are not viable.  The court saw no state law that could be capable of paralleling any federal off-label regulation and, regardless, no federal regulation that actually prohibits off-label promotion.  In other words, neither side of the parallel exists:

The weight of authority both in this Circuit and elsewhere casts doubts on the viability of [claims for misleading off-label promotion]. See, e.g., Caplinger v. Medtronic, Inc., 784 F.3d 1335, 1341-45 (10th Cir. 2015) (finding no federal regulation that paralleled state common law claims and further concluding that state law off-label promotion claim was preempted by § 360k); United States v. Caronia, 703 F.3d 149, 162 (2d Cir. 2012) (“[T]he FDCA itself does not expressly prohibit or criminalize off-label promotion.”); In re Zyprexa Prods. Liab. Litig., Nos. 04-MD-1596, 07-CV-1933 (JBW), 2008 U.S. Dist. LEXIS 10355, 2008 WL 398378, at *5 (E.D.N.Y. Feb. 12, 2008) (“[T]here is no state-law equivalent of ‘off label.'”).

See id. at *3-4 & n. 2 (emphasis added).

Now, it’s dictum.  The court based its actual ruling on plaintiff’s failure to meet Twiqbal pleading requirements.  But it’s strong dictum that goes to the very root of the problem with parallel violation claims based on off-label promotion.  There can be no state-law off-label claim enforcing requirements similar to FDA regulations because the entire notion of off-label is a creature of federal law.  And, even if there could be such a state-law claim, federal law does not prohibit off-label promotion.  In short, there’s no there there from which plaintiffs could construct a claim.

So, while it’s dictum, it is good insight into how the court that gave us Coronia (blogged about here) thinks about off-label claims in device cases.

In the non-dictum portions of the opinion, it was all good too.  The court upheld preemption of plaintiff’s failure to warn and design defect claims under RiegelId. at *3.  It upheld dismissal of plaintiff’s manufacturing claims for pleading deficiencies.  Id.  And it upheld dismissal of plaintiff’s Vermont Consumer Fraud Act claim, rejecting her attempt to turn a product liability claim into a consumer protection claim: “Plaintiff did not constitute a ‘consumer’ under the statute because she did not, for her personal use, purchase Infuse, which in any event is not available for consumer purchase, but rather was prescribed the medical device by her doctor.”  Id. at *4-5.

The Second Circuit is one of the circuits that seems to “get it” when it comes to off-label promotion.

“We’ve seen this movie before.”  That is something people say when they encounter something that seems simultaneously dreadful and predictable.  That is how we felt upon reading the latest dismal opinion out of the Drake Botox litigation in Vermont federal court.  We’ve blogged about this case several times before, bemoaning the blundering approach taken towards the learned intermediary, heeding presumption, and Daubert doctrines.  The result was that the jury heard all the wrong stuff in this case.  An avalanche of improper evidence swept over the jury box, and the plaintiff walked off with $2.7 million in compensatory damages and $4 million in punitives.  The defendant filed post-trial motions for judgment as a matter of law and, in the alternative, for a new trial.  The result was nothing if not consistent: a reiteration of earlier, rotten rulings and denial of the defendant’s post-trial motions.  You can read the bad news here:  Drake v. Allergan, Inc., 2015 U.S. Dist. LEXIS 66932 (D. Vt. May 22, 2015).

In our earlier posts we tried to say something nice about Vermont.  For instance, in 1777 it independently declared its independence from Britain and remained a separate “Vermont Republic” for 14 years before joining the union.  These days, it has a socialist senator with ambitions to be president.  But mostly, we stuck to the theme of cheese.  Sometimes we
mentioned other fine dairy products from Vermont.  That reminds us of a recent discussion we heard about what the world would be like if every man had to be named John.  You might think such a discussion is frivolous, but you’d be wrong.  It makes at least as much sense as the opinion we’ll be perusing today.  Be that as it may, perhaps the most profound
consequence of the John-only rule would be that Ben & Jerry’s ice cream would be called John & John’s.  How’s that for counterfactual scenarios that make you reconsider your worldview?

Today, we decided to go a different route.  We looked for movies that were set in Vermont, or at least had some connection to the Green Mountain State.  An odd pattern emerged.  For example, consider Mr. Deeds Goes to Town.  That Capra classic is about a rich yokel who visits New York City, handles the boozing and partying badly, tries to give away his money, and ultimately faces a commitment hearing.  Two spinsters from his Vermont hometown testify against him.  They say Mr. Deeds is “pixillated.”  On cross-examination, it turns out that these biddies believe that everyone is pixillated, including the judge.   Somewhat less classic and not nearly as good as Mr. Deeds Goes to Town was Funny Farm, a ‘comedy’ about a couple whose misadventures on a Vermont farm turn out to be everything but funny.  Chevy Chase had already entered his pointless mugging phase, and the movie is a perfectly miserable way to waste 101 minutes of your life.  But at least no one tells you that Funny Farm is any good.  By contrast, lots of people praise Dead Poets Society, even though it is purely pretentious twaddle.  Robin Williams plays a new poetry teacher (his name is Keating for crying out loud) at a Vermont prep school that is curiously full of future film and tv stars (Ethan Hawke, Robert Sean Leonard, Josh Charles, etc.)  There is a nice clue to the movie’s stupidity in the fact that the rallying cry is “O Captain, My Captain,” surely the worst poem Whitman wrote.  Teenage narcissism is never pretty, and Dead Poets Society wallows in it.  We end our tour of cinematic Vermont with a couple of Hitchcock’s lesser known efforts.  Spellbound was largely set in a Vermont insane asylum.  It is most famous for a dream sequence assembled by Salvador Dali.  Hitchcock’s personal favorite among all his movies was The Trouble With Harry.  Harry causes trouble by turning up dead in the Vermont countryside.  Nutty locals play a weird game of moving the body for no good reason.  The rubes exhibit a disquieting disinterest about disinterment.

A commitment hearing, a funny farm, neurotic adolescents, an insane asylum, and bucolic eccentrics.  Bernie Sanders.  Wyeth v. Levine.  On this evidence, we think that the two senior citizen witnesses in Mr. Deeds Goes to Town might be on to something:  everybody in Vermont really is crazy.  The Drake case is merely cumulative evidence on this point.

If you require a reminder about what happened in the Drake case, here goes.  The case was brought by parents on behalf of their son.  The son had cerebral palsy.  His doctor injected Botox into the boy’s calves to treat lower limb spasticity.  The law suit claims that these injections caused the boy to develop a seizure disorder.  After a thirteen-day trial, the jury found the defendant negligent and found that punitive damages were warranted.  One of the key plaintiff witnesses in the case was Dr. Hristova, who testified about medical causation.  One piece of evidence on which Dr. Hristova relied was a study that the defense lawyer thoroughly discredited during cross-examination.  The trial judge concluded that even though the plaintiff expert’s main support had been undercut, a reasonable jury could conceivably have found that Botox caused the seizures because Dr. Hristova relied on the “totality of circumstances.”  Those circumstances included seizure rates in clinical trials, a study, adverse event and anecdotal reports, biological plausibility, theoretical mechanisms of action, an FDA guidance, the Botox label, the temporal connection between Botox usage and the seizures, and the lack of an alternative explanation.  The court acknowledged that no single piece of this evidence would necessarily have been conclusive in isolation, but “together it paints a picture sufficient to support the jury’s finding on medical causation.”  That’s like saying that seven Vermont cowpies smell sweeter than one.  If any picture is being painted, it is a picture of a court letting pretty much everything in that the plaintiffs wanted, and then letting the jury do anything it wanted.

The case was about a failure to warn.  To borrow an overused phrase, the issue was what did the defendant know and when did it know it?  And what, exactly, did it fail to tell the doctor?  The evidence in the Drake case is astonishingly weak.  There was “evidence suggesting that the overall rate of seizures in Allergan’s clinical trials was higher in Botox groups than in placebo groups and that Allergan may have selected favorable data to make this fact less obvious in its reports to the FDA.”  That is not only speculative, but it seems to run afoul of Buckman preemption.  As the court phrases it, it sounds as if the failure to disclose arose from the company’s  communications with the FDA that, at least according to the plaintiffs, were less than candid.  That is a claim of fraud (if you could even call it that) on the FDA.  But such fraud would be for the FDA to pursue, not plaintiff lawyers masquerading as Green Mountain Boys.

And, anyway, what does that purported hoodwinking of the FDA have to do with the doctor’s decision to use Botox?  If you read our prior posts on the Drake case, you know that the treating doctor never-ever said that a different warning would have changed his risk-benefit calculation.  The doctor also said that such calculation was based on his own training and experience, not on anything the manufacturer said or did not say.  The judge did not care.  Even if the jurors believed the doctor’s testimony that he relied on his training and experience, “they could have nevertheless relied on a variety of evidence to conclude that Allegan’s promotional efforts over the years also played a substantial part in Dr. Benjamin’s choice to treat J.D. with Botox and to select the dose he administered.”  That is, the court speculated that the jury could have speculated about how promotional efforts could have somehow impacted the doctor’s decision, even if the doctor disclaimed such impact.  To be fair, the court would probably reject our characterization of this ‘reasoning’ as mere speculation.  After all, the plaintiffs had presented evidence that the defendant’s employees “had direct contact with Dr. Benjamin during two separate time periods.”  Not just contact, but direct contact.  Wow.  But where is the evidence that the nature of such contact amounted to fraudulent understatement of risk?  It gets worse.  The court also speculates that the “jury also could have reasonably inferred that doctors may be influenced by drug promotion but may not be consciously aware of how the promotion has influenced their behavior.”  Yikes.  Now the court is piling speculation on top of speculation.  We’re almost in the nutty world of subliminal advertising (which, by the way, has been as thoroughly discredited as Dr. Hristova’s basis for her medical causation opinion).  Was there any support for the notion that company promotions can overcome a doctor’s will without that doctor knowing it?  Of course there was, if you believe the testimony by plaintiff super-expert Dr. David Kessler, who “described a study by the World Health Organization and  Health Action International finding promotion influences attitudes more than doctors realize.”  Did Dr. Kessler tie that study to the treating doctor in this case?  We do not know.  And we bet that, as far as this court was concerned, it does not matter.

The court pointed out that the plaintiffs elicited testimony suggesting that the defendant affected medical literature in various ways, including the inevitable “ghost-writing.”  It does not sound as if any of these allegedly tainted publications (by the way – were they shown to be actually wrong?) were connected to the treating doctor’s decision.  The most that the plaintiffs’ lawyer could force the treater to say was that the defendant had “been a part of all the experiences, influence, and training he has had”  (undoubtedly true – but you could say the same thing about medical school, the evening news, the epic pronouncements of Dr. Kessler, and plaintiff lawyer ads), and that all of that together “would have had some influence in general over the practice.”  That isn’t causation, that is pantheism.  It has all the coherence of a Phish jam.  Nevertheless, the court tells us that the jury “could have inferred” that the defendant’s promotion activities influenced the doctor’s “dosing choices, whether consciously or unconsciously.“  Maybe the jury was influenced by the babblings in Dead Poets Society.  We don’t know.  We’re just guessing.  If you read the Drake opinion half as closely as you would read a Whitman poem, you’ll notice that almost every paragraph is heavily dosed with the word “infer.”  Substitute the word “speculate” for “infer” and you
will have a much more accurate appreciation for what this decision hath wrought.

Such judicial tolerance for speculation supports both the compensatory and punitive awards.  As an initial matter, the court acknowledges that the  Vermont Supreme Court jurisprudence on punitive damages “has not been a model of clarity.”  Luckily, this federal court will inject clarity and rigor into the topic, right?  Wrong. The plaintiffs were required to prove that the defendant’s conduct was outrageously reprehensible.  The court then alludes to the defendant’s 2010 guilty plea regarding off-label promotion.  That seems like dirty pool, given how fragile those governmental prosecutions for off-label promotion were.  To the extent they were premised on the False Claims Act, the causation theories had the consistency of maple syrup – a sticky mess.  And to the extent that the first amendment still exists in this country for commercial speech, the prosecutions were probably unlawful.  See United States v. Caronia, 703 F.3d 149 (2d Cir. 2012). But nobody wants to play chicken with the DOJ, so it is better to pay up than risk debarment at most or agency hostility at best. In any event, connecting the conduct at issue in the guilty plea with the particulars of the Drake case is another exercise in sheer speculation.  Almost to the point of monotony, the court tells us that the jury “could also have inferred Allergan’s promotional efforts reached Dr. Benjamin….  The jury also could have inferred Dr. Benjamin was influenced by [a website promotion] because he testified that he referred to their website in his practice and had seen the dosing schedule before.”  That is a lot of speculating – err, inferring – to get one to not quite proving any point, much less a point that would support punitive damages.  But the court concludes that a “reasonable jury could have felt morally outraged by a corporation’s desire to put its bottom line above children’s health, safety, and even lives.”   That line would  have fit snuggly into the plaintiff’s closing argument.  Heck, we’ll infer that it’s in there.

John & John’s — oops – Ben & Jerry’s offers a sundae called the Vermonster.  It consists of 20 scoops of ice cream, four bananas, and layers of brownies and other sweets.  Now replace those goodies with turnips, guano, and glass shards, and you’d have the sort of Vermonster that the federal court whipped up in the Drake case.  But let’s be realistic.  After all sorts of wrong, wretched evidentiary decisions, after having sat through a 13 day trial, and after hearing a jury deliver a Vermont spanking to an out of state corporate defendant, what are the odds that the court would own up to mistakes and fix things?  It sometimes happens, but it is darned rare.  That’s why we have appellate courts — such as the Second Circuit, which decided Caronia.

Anybody who watched the Mayweather-Pacquiao fight knows that a long fight does not necessarily make for an exciting fight. Thirty-six minutes of “action” can actually contain very little action. The exceedingly long decision of the court in Grocery Manufacturers Assoc. v. Sorrell, No. 5:14-cv-117, 2015 U.S. Dist. LEXIS 56147 (D. Vt. Apr. 27, 2015), has little to keep our DDL-centric attention—its discussion of preemption based on various federal statutes, including the FDCA.  As the court forcefully rejected most preemption arguments raised by trade groups whose members were likely to be affected by Vermont’s labeling rules for foods derived in whole or in part from genetic engineering, we are reminded of another dynamic from the “Fight of the Century.”  Watching live, with the volume up, a viewer might have been swayed by the cheering of the decidedly pro-Pacquiao crowd into thinking Pacquiao was doing damage during many of the too-infrequent exchanges of punches.  However, almost invariably, the slow-motion replay between rounds showed Pacquiao’s blows had been deflected and followed by a Mayweather punch to the face, the latter almost too quick to see in real time.  Similarly—or at least as similarly as pugilistic analogy allows—the court’s analysis of preemption relied on borrowing concepts from one type of preemption and applying them to another without saying what it was doing.

As our resident state historian cum travel brochure maker (and boxing aficionado) has noted here and here, Vermont has been known to do its own thing. That has included enacting peculiar statutes that unconstitutionally impinge on national commerce.  Based upon its judgment that the various federal statutes and regulations—and the pendency of federal legislation—did not do enough to inform consumers of the existence of ingredients created through some degree of genetic engineering in products they might purchase, the Vermont legislature enacted Act 120.  It contained two provisions challenged in the GMA case, one requiring packaging or site-of-sale displays disclosing the presence of ingredients derived from genetic engineering in products for sale and one prohibiting labeling or advertising describing the product as “natural” in one way or another.  (We will skip the discussion of how much genetic engineering counts, given that humans have been eating “genetically engineered” food ever since our ancestors started selectively mating captured aurochs or zebu and have known that this was a manipulation of genetics at least since Gregor Mendel started playing with peas in his abbey.)  The legislature could not say that foods with one or more genetically engineered ingredients were less safe than those without, but cared that polls showed Vermonters wanted to know about the presence of such ingredients so they can make “informed decisions” and not be “confus[ed] and dece[ived]” by claims of “natural” products.  Before Act 120 even took effect, a multi-faceted constitutional challenge was brought.  The decision we are discussing results from the Vermont AG’s motion to dismiss and the plaintiff’s motion for preliminary injunction.  If you want to read about the Commerce Clause or First Amendment issues with Act 120, knock yourself out, but we will not discuss them here.

Continue Reading Going The Distance To Limit Preemption

A week or so ago Grantland tv critic Andy Greenwald penned a “can we talk” letter to Sunday night, asking how it managed to fall so far from greatness.  Just last Spring we could plop down on our couch at the end of the weekend to watch Game of Thrones, Mad Men, Veep, and Silicon Valley. Even if some time-shifting was required, it was worth it.  Now with the departure of the criminally underrated Boardwalk Empire, Sunday evening has morphed into a drama wasteland.  (Sunday Night Football certainly has not supplied any drama.  Did you see the dumpster fire that calls itself the Chicago Bears?) The sheer craziness of Homeland has driven us away, with a lead character who calls in drone strikes as she boinks her way into fresh intel.  And then we get the competing stories of The Affair, a show that hasn’t attained Rashomon heights of greatness (“Look, the guy from The Wire and the girl from Luther are remembering different wallpaper designs!” “Why is the cop telling them completely different stories about his home life?”).

Let’s pour out some hooch in honor of Boardwalk Empire and remember its well-drawn characters, some of them plucked from the pages of history, and their poetic recitations of despair.  The show has one of those historical characters, the gambler/gangster Arnold Rothstein (some say he fixed the 1919 World Series), sharing this bit of wisdom:  “All of man’s troubles come from his inability to sit in a quiet room by himself.”  As we plunge toward dotage, that sentiment seems very true.  Ex-federal agent Van Alden (played by the great Michael Shannon, the same actor who declaimed the insane sorority letter) realized, on the doorstep of his personal doom, that “[w]e haven’t thought this through.”

We are feeling a bit of despair this week  after reading an opinion that we do not think was thought through.  Last week we identified some things we liked and some things we did not like so much in the Daubert rulings in the Drake case pending in Vermont federal court, where the plaintiff claimed injuries from Botox injections.   This week we will look at the summary judgment rulings in that same case.  We harbor no mixed feelings at all about the opinion;  it is a complete stinker. Drake v. Allergan, Inc., 2014 U.S. Dist. LEXIS 154979 (D. Vermont October 31, 2014).  The opinion was appropriately issued on Halloween.  It is scary bad.  It mucks up the learned intermediary rule, whilst pretending to steer clear of saying anything about it.

In one courtroom scene in Boardwalk Empire, a judge says this to a prosecutor:  “I sympathize with your desire to bring purpose to your life, however this courtroom is not the place to do it.”  That is a hard-headed judge.  We like that judge.

But now let’s go to Vermont.  In Drake, the plaintiffs brought an action on behalf of their son, J.D., alleging that he was injured after receiving an “overdose” Botox injection for treatment of lower-limb spasticity.  They brought claims of strict liability/failure to warn, negligence, and violations of the Vermont Consumer Fraud Act, all premised on an alleged failure to warn about proper dosages.  Here is an additional wrinkle in this Botox case:  because the FDA has not approved Botox as a treatment for pediatric spasticity, the administration at issue was off-label.  Off label or not, the treating doctor testified that Botox has been one of the standards of care for treating pediatric spasticity for over 20 years.

Continue Reading Hard Cheese: D. Vermont Avoids/Dilutes Learned Intermediary Rule

If all Vermont had given us was fantastic cheese and Ben & Jerry’s ice cream, that would have been plenty.  But the 14th state has also given us some interesting politicians (Calvin Coolidge, Howard Dean, Bernie Sanders), some riveting fictional characters (Simon LeGree, Pollyanna, Hawkeye Pierce), the setting for the sitcom that stuck the landing better than any other, Newhart, and, of course, perfect Autumn foliage.  Vermont has been called home by one of our greatest playwrights, David Mamet, and one of our finest character actors, Luis Guzman (Out of Sight, Carlito’s Way, etc.).  We hear that Guzman does ads for Cabot Creamery.  We’d love to see those ads.  Wait a minute – maybe through this internet thing we can do just that.  Hold on a second.  Okay, here you go.  Please please please, do yourself a favor and see Out of Sight if you haven’t already.  It might be Soderbergh’s and Clooney’s best movie.  It is certainly J Lo’s best.  It has a wonderful array of character actors: Ving Rhames, Steve Zahn, Dennis Farina, Don Cheadle, Albert Brooks, and the aforementioned Mr. Guzman.  The romance scene between Clooney and J Lo is perfect, melding expectation and experience into a sensory now-now-now.  See it!  Now back to the law biz.  By the way, the lawyer we most admire graduated from U. Vermont’s law school.

For the moment, let’s put aside the fact that Vermont gave us Wyeth v. Levine.  (Sigh.)

The opinion we are cheddaring about today, Drake v. Allegan, Inc., 2014 U.S. Dist. LEXIS 151830 (D. Vermont October 23, 2014), comes from Vermont and it isn’t half bad. But it might be close to that.  The plaintiff sued the defendant, alleging that its Botox product injured him. Both parties filed Daubert motions to exclude the other side’s experts. The court ended up entirely denying the plaintiff’s motion to exclude the defendant’s medical causation expert and partly granting the defendant’s motions to exclude the plaintiff’s regulatory and medical experts.  If we were defense counsel in the Drake case, we’d call that a good day and reward ourselves with a dish of Vermont’s state pie (apple) drizzled with maple syrup, with a side of Vermont’s state beverage (milk, of course).  And there would be fromage.

Continue Reading D. Vermont Daubert Rulings: Some are Gouda; Some are So Grating We Camembert Them