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Ask 100 federalprosecutors if there is any part of the job they do not like, and at least 99of them will mention responding to prisoner habeas corpus petitions. First, they are written incoherently, so it is hard figuring out what thepetitioner is asking for and on what grounds. Then you have theobligation of explaining to the court what the prisoner wants, presuming thatthe prisoner is making the best arguments in the best possible way. Onlythen do you get to the fun part of demolishing the arguments that you wereforced to construct. And even then some judges bend over backwards togive the petitioner every benefit of the doubt, if only for the want of a jurisdoctor degree. We remember not so fondly one time when a magistrate judgemade us jump through a series of ever higher hoops (including retention of anexpert witness) to prove the validity of a positive drug test showing that aprisoner who had been incarcerated for four months must have imbibed whilst instir (resulting in discipline), as opposed to before imprisonment (noadditional discipline).
We do not often face pro se adversaries these days, but when we do theyfrequently find ways to vex us. Right now we are dealing with a plaintiffwho has pretty much acknowledged that he has no evidence that our client'smedical device was defective in any way, yet he insists on a nuisance paymentto make him go away. We seldom see that sort of mendacity and pettinessfrom even the most scurvy-minded plaintiff lawyers. What's worse is thatif we do come to blows-via-pleadings with this pro se plaintiff, there is agood chance that some judge will treat that plaintiff with kid gloves.
For that reason, we do not underestimate the defendant's recent victory inOhuche v. Merck & Co., 2012 U.S. Dist. LEXIS 147483 (S.D.N.Y. Oct. 12,2012). At the same time, the case shows how courts occasionally givebreaks to pro se plaintiffs that make no sense. The plaintiff allegedinjuries from a Zostavax vaccine for prevention of shingles. The labelfor Zostavax lists several possible side effects, and it is not clear what theplaintiff thinks should have been in the label that was not there. In any event, the doctor never read the label. In any event, the doctor alreadyknew the risks. In any event, "the medical records for Ohucheinclude notations inconsistent with her allegation that she developedshingles-like symptoms shortly after receiving the Zostavax vaccine."2012 U.S. Dist. 147483 at *7. Easy case, right?
In the end, yes it was. But the court (and we are talking about anexceedingly important and intelligent judge, Scheindlin) made getting there awee bit more sticky than we like, and certainly more so than wasnecessary. Here is how the court begins the Discussionsection: "Because plaintiff's Complaint does not state anyparticular causes of action, it must be construed to raise the strongestarguments possible." Id. at **14-15. As Homer Simpson would say,"D'oh!".
And then the way this principle (of what? Leniency? Fiction?) getsapplied to the issue of medical causation is scarier than a Stephen King novel,an episode of American Horror, the prospect of a new Adam Sandler movie, orhaving to read the latest Parisian expert report. Plaintiff Ohucheappears to have had no expert witness on medical causation. In somecourts, that would end the case. Moreover, the facts regarding the timingof the plaintiff's symptoms were sketchy. Nevertheless, the court findsan issue of disputed fact on medical causation based on the existence ofmedical literature documenting that the vaccine can cause the side effects,"coupled with the allegedly close temporal proximity between the date ofthe vaccine and the onset of symptoms." Id. at *18. DoubleD'oh!
We could wheel out scads of precedents refuting this nonsense, including theEleventh Circuit Guinn case that some of us here worked on and that we mentionat the drop of a hat or a hint of bad reasoning on Daubert and medicalcausation issues. But calm down (so we say to ourselves), because this bad biton medical causation is pure dicta. It is unnecessary to the opinion,because the court goes on to dismiss the plaintiff's complaint for "lackof proximate causation." Id.
New York applies the learned intermediary rule. Thus, the issue waswhether the treating doctor was adequately warned. The doctor testifiedthat she was aware of the adverse reactions associated with the vaccine despitenot reading the relevant literature. The vaccine manufacturer"completely fulfilled it's obligation to disclose the risks, side effectsand contraindications associated with Zostavax." Id. at *20. Thecourt concludes that if the plaintiff has a viable claim against anyone, it isfor malpractice against the doctor. (Come to think of it, that is moredicta, isn't it?). The claims against Merck were dismissed.
So, in the end, it is a good result. But because the court seemed to wantto toss a few bones to a pro se plaintiff, we experienced a side effect from anotherwise decent opinion. In South Philly it's called agita. Can we sue for that?
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