Not to complain or anything, but these are rough days. Wewere stunned by the last episode of Downton Abbey. [SPOILER ALERT for you pathetic Nigel-Come-Latelies to Downton Abbey. Skip to the third paragraph if you are still catching up via your Betamax machine. By the way, you might also want to try listening to a hot new musical group called The Beatles. Also, check out vanilla ice cream. It's an acquired taste, but pretty darn good.] When has a series killed offtwo main characters (and, arguably, the most important character, in terms ofsetting action in motion and being transformative) in the same season? The showis well written and splendidly acted, but it is, at bottom, cruel. Theresumption of Breaking Bad will actually come as a relief; sure, there’s lotsof drug dealing and murder in it, but it does not toy with our emotions nearlyso much as those arch Brits. (For an interesting mash-up, see the “BreakingAbbey” skit here.) From what we hear, the latest Downton death came aboutbecause the actor wanted to abandon the show for other acting opportunities.Mr. Stevens, we mutter a few curse words in your direction: "Daniel J.Travanti" and "David Caruso." Good day, sir!
The expiration of a charming fictional lawyer followed byonly a few days the death of a real life, regal legal eminence, Ronald Dworkin.In our first year of law school the great Edward Levi taught a class called“Elements of the Law,” which addressed the Big Questions – certainly biggerthan the Rule in Shelley’s Case or the distinction between larceny by trick andobtaining property by false pretenses. In "Elements" we read from the likes ofBentham, Rawls, and Dworkin. We struggled mightily to follow Dworkin'sintricate analyses. How can a book with such a straightforward title, TakingRights Seriously, be encumbered with such impenetrable prose? And yet Dworkin'sinsistence on law's moral dimension was undeniably refreshing. Dworkin was the second mostcited legal scholar of the 20th Century, exceeded only by our favorite SeventhCircuit Judge, the one who launched our occasional postings on why “There’llAlways be Posner.” Dworkin ennobled our profession, even as he often puzzledit.
Meanwhile, the same issue of the Wall Street Journal with Dworkin’sobituary also informed us that fish exposed to certain anti-anxiety drugs (via industrial run-off or sewage) becomeless social but braver. Granted, we are not sure how to define ichthyo-courage,but the story had us hooked. It also made us feel somewhat anxious. As is alltoo often the case, we find ourselves wondering how bits of news and popularculture would affect judges and jurors. It might well be that a timid perchcould benefit from a random dose of an antianxiety medication. The fish'sconsumption of the Mickey Fin might have been off-label, but we do not think anover-enthusiastic sales rep played any role in luring in that particularcustomer. Still, we couldn’t help but think that some readers would takethis fish-story (the one that did not get away) as further evidence ofcorporate perfidy and bad drug side effects. We are swimming through the watersof a double standard. The scales are weighted against corporations, which areheld to a higher standard and suspected of the worst means and motives.
Speaking of side effects, we capped off the week by seeing amovie by that name. Side Effects is the new (and, by the director's account,last) Steven Soderbergh film. The coming attractions promised yet another uglycinematic portrait of drug and device companies, as in The Constant Gardenerand Love and Other Drugs. Nevertheless, while Side Effects has a couple ofnegative references to drug marketing, it says at least as many bad thingsabout doctors and patients as about companies that sell products. ' Trustnobody' seems to be the message. Fine. Done.
When we surveyed the weekly docket, we were looking for away to rinse off all this depression and anxiety. At a minimum, we were lookingfor a case where our side did not get burnt by the usual double standard. Wefound that case in the Accutane MDL - specifically, Aranda et al. v.Hoffman-Laroche, 2013 WL 562707 (M.D. Fla. Feb. 14, 2013), where the courtended up denying the plaintiffs' tardy effort to name a general causationexpert witness and consequently granted summary judgment and dismissed 40cases.
The Aranda plaintiffs filed their multi-plaintiff action inIllinois state court, alleging that they developed inflammatory bowel disease("IBD") as a result of their use of Accutane. The case wasremoved to federal court, and then was sent to the Accutane MDL. Here is therelevant chronology:
- Earlier in the MDL, the court had struck the plaintiffs' IBD general causation expert.
- The magistrate judge issued a scheduling order for all new cases in the MDL, requiring plaintiffs to name general causation experts four months after transfer to the MDL. The order made clear that extensions “should not be anticipated.”
- In July 2012 the magistrate judge held a status conference and set a November date for plaintiffs to disclose their experts. Plaintiffs' counsel attended telephonically. The magistrate judge issued a scheduling order, though the plaintiffs’ counsel later claimed they never received a hard copy of the order.
- In September 2012, the court severed the Aranda cases and forced the filing of separate complaints. The severance order referenced the July scheduling order.
- November 2012 came and went without any designation by the plaintiffs of a general causation expert.
- In December 2012, the defense counsel sent a letter to plaintiffs’ counsel asking why they had not yet disclosed their experts. There was no response.
- The defendant filed a summary judgment motion in January 2013. On that last day of that month, the court issued an order to show cause directing plaintiffs' counsel to file a response to the summary judgment motion.
- Only after that did plaintiffs seek an extension of time to name their expert.
The issue was whether plaintiffs' counsel had established"good cause" to modify the scheduling order pursuant to Fed. R. Civ.P. 16(b)(4). The judge saw no such good cause, finding that theplaintiffs "do not present any legitimate excuse for failing to meet theCourt's deadlines." 2013 WL 562707 at *2. The plaintiffs'counsel's claim that it did not receive a hard copy of the July 2012 schedulingorder was "disingenuous" in light of the plaintiffs’ telephonic presenceat the conference. Id. The court noted that the plaintiffs'counsel's failure to sign up for electronic service notifications was not avalid excuse. Id. at n. 1. Further, the CM/ECF system showedservice of a hard copy of the July 2012 scheduling order at two separate addresses. Anyway, why wouldn't counsel have made some sort of inquiry after not receivingthe order? Moreover, plaintiffs' counsel clearly received the September2012 severance order -- inasmuch as they complied with it -- and that orderspecifically referenced the earlier scheduling order.
Perhaps the most damning evidence was the plaintiffs'counsel's failure to respond to the defense counsel inquiry in December. Tomake matters worse, though the Aranda cases had been lingering for 19 months,the plaintiffs' counsel admitted they had not begun looking for an expert untilafter receiving the inquiry from defense counsel. The court found that admission"inexplicable." Id. at *3. Here is the court'sconclusion: "Their failure to do anything with respect to locatingan expert until December 14, 2012, already one month after the disclosuredeadline, is inexcusable and demonstrates an utter lack of diligence to pursuetheir claims in this case. Their delay of another month and a half afterthe letter before seeking an extension of time is similarly inexcusable. Accordingly, their motion for an extension of the expert deadlines isdenied." Id.
Without a causation expert, summary judgment was a foregoneconclusion. Those 40 cases are gone. It is as if they had crashed and arenow overturned in a ditch by the side of the road.
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