We greeted the result in Bartlett v. Mutual – that a genericmanufacturer could be tagged for $21 million in a product liability case,despite Mensing, on the theory that the manufacturer had the option not to sellthe product at all – with derision and dismay. The decision was wrong,even subversive. It stuck a thumb in the eye of the Supreme Court’sMensing analysis and adopted a rationale that no other court has been sillyenough to embrace. See our Mensing scorecard. We make no bones about our preference for touting gooddefense decisions, but we certainly never pretended that Bartlett was notimportant. It is important. So is the Ebola virus. And theDallas Cowboys.
The plaintiff and her lawyer trumpeted the significance ofthe Bartlett case. Here is what the plaintiff said after learning of the$21 million verdict: “That was my biggest thing – getting the word out. Before this happened to me, I never knew something like this could happen justfrom taking medication.” Bartlett’s attorneys said it was the largestaward in a New Hampshire product liability case. The largest previousaward was $13 million in a construction siteaccident. After the First Circuit affirmed the verdict, the plaintifflawyer called the ruling “potentially huge.” He said it established “thatMensing only affects failure to warn claims. ‘Impossibility preemption’ –where a generic company cannot simultaneously be held liable for failure tochange a label when it has no ability to change a label – has no relation to aproduct defect case.”
Now get a load of a couple of the headings in the Opposition to Certiorari:
· “The petition does not present a questionof recurring national importance.”
· “Sulindac is not an essential drug, andpetitioner presented no contrary evidence.”
Turns out the Bartlett case was not so important afterall. Nothing to see here, Justices, move along.
Let’s face it, if the Supreme Court takes a look at theBartlett decision, there will be a reversal. In fact, summary reversal isappropriate. The plaintiff lawyer knows that. Consequently, theOpposition to Certiorari suggests that the case is so insignificant andeccentric as to be beneath the Supreme Court’s attention.
According to the plaintiff, Bartlett is unusual because itwas a product liability case with no failure to warn claim at all. Thatsupposedly makes it different from Mensing and every other case under thesun. The luckiest thing that ever happened to the plaintiff in Bartlettwas when the trial court dismissed the failure to warn claim. Even so,under New Hampshire law, the warning would have been relevant in a designdefect claim insofar as a comment k analysis was in play, because the issue ofwhether a product was “unavoidably unsafe” takes into account thewarnings. But the defendant in Bartlett explicitly waived its comment kdefense before trial, apparently because the defendant wanted to make sure thejury would not work up prejudice over the warning issue. Theplaintiff argues that all Mensing did was preempt failure to warn claimsagainst generics. The plaintiff also argues that while a genericmanufacturer cannot simultaneously comply with a state duty to slap abetter warning on a drug whilst also complying with federal law that prevents generics from changing the label, it is possiblefor a generic to comply with both federal law and the state law not to sell anunreasonably dangerous product by simply not selling the product at all.
The Opposition is desperation wrapped in modesty bundled insophistry. We cannot improve on the Petition for Certiorari, which madeseveral points that thoroughly puncture the plaintiff’s effort to hang onto the$21 million:
· The federal duty of “sameness” forgenerics applies to design as much as to the warning.
· After the Supreme Court’s Mensingdecision, the Eighth Circuit in Mensing vacated its pre-remandopinion despite the plaintiff’s post-Mensing assertion that “there is nothinginconsistent with the Supreme Court’s decision about holding defendants liablefor their failure to suspend sales.”
· The Sixth Circuit, in Smith v. Wyeth, Inc.,657 F.3d 420 (6th Cir. 2011), affirmed judgment for genericmanufacturers despite plaintiffs’ post-Mensing claim that the defendants’“decision not to suspend sales and to continue selling their [generic product]is [both] actionable [and] wholly consistent with Mensing” because “no federalstatute or regulation prohibited them from ‘independently’ suspending sales oftheir product.”
· Bartlett’s reasoning “blasts a gaping holein Mensing.” Put simply, the Bartlett rationale would have produced adifferent result in Mensing.
· The First Circuit itself in Bartlett acknowledged “tension” between itsreasoning and Mensing, and practically begged the Supreme Court to take a look.
We would add two more points about what’s wrong withBartlett and why the Supreme Court needs to administer a fix:
1. Bartlett is perversely reasoned. Itbegins its preemption analysis, not with Mensing, but with Wyeth v. Levine. The First Circuit concludes that Wyeth v. Levine established a generalno-preemption rule. Only then does the First Circuit mention Mensing, andconstrues it as a narrow exception that does not apply here because Mensing wasa failure to warn case, not a product defect case. Here is what is soweird about that bit of terpsichorean jurisprudence: Wyeth v. Mensing,too, was a failure to warn case, not a design defect case. Moreover,Mensing, like Bartlett, involved a generic manufacturer. Wyeth v. Levinedid not. Bartlett takes preemption through the looking glass. Pernicious nonsense reigns.
2. As we discussed in one of our many earlier postsabout Bartlett, the defendant got mightily hosed because, even after winningdismissal of the failure to warn case, and even after deciding to waive itscomment k defense just to make sure failure to warn would not sneak into thecase, the plaintiff still managed to parade the warning before the jury,despite the usual, feckless limiting instruction. A little truthplease: Bartlett might have been dressed as a design defect case, butlike most DDL cases it centered on failure to warn.
We do not agree with plaintiff attorneys or Dallas Cowboyfans often, but this time we agree with the Fort Worth plaintiff lawyer whosaid that his win in Bartlett was “huge.” No need for modesty. Now let’s get a hugereversal.
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