We’ve been on the verge of triskaidekaphobia. So far 2013 hasn’t been a very good year forus, with Weeks, Stengel, Arters, and Wells. At this rate, we could fill up ourWorst Decisions of 2013 by mid-March. And yes, we’re not Dr. Pangloss here on DDLaw – we do cover our side’slosses, if rather grudgingly.
But finally this week turned out better,judging by the cases we’ve learned about so far. First and foremost is a case we onthe Reed Smith side just can’t talk about very much, since it’s our case. That’s Caplinger v. Medtronic, Inc., No.CIV-12-630-M, slip op. (W.D. Okla. Feb. 6, 2013). All we cansay is that it involves PMA device preemption (Riegel), and off-label useissues, and it’s favorable. We’re hopingthat our Dechert contingent can give readers an update on just how it’sfavorable. Until then, we’ve given you alink – and put it on the medical device preemption scorecard.
We also learned about a good class action decision,In re Celexa & Lexapro Marketing & Sales Practices Litigation,MDL No. 09-02067-NMG, slip op. (D. Mass. Feb. 5, 2013). As readers can tell from our federal and state class action cheat sheets, successful class actions in drug/device productliability litigation don’t happen much anymore, if at all. Indeed, we’ve been following this topic moregenerally, and we believe that, since the groundbreaking Supreme Courtdecisions of the late-1990s (Amchem Prods. Inc. v. Windsor, 521 U.S. 591(1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)), not asingle contested personal injury merits class action (as opposed to settlement, where the fix is in) has survived appeal in the federal court system –that’s not just drug/device but any form of personal injury.
Is it any wonder that the purveyors of classactions have turned away from personal injury to economic loss? We don’t think so. But as our cheat sheets indicate, theyhaven’t done very well there either, at least where drugs/medical devices areconcerned. We’re pleased to report that Celexa/Lexaprocontinues that trend – even though the forum-shopping plaintiffs ensconcedthemselves in a relatively defense-unfriendly forum (District of Massachusetts)and eventually retreated to invoking extremely defense-unfriendly law (theinfamous California UCL, and the less infamous, but we’d say now about equallybad, Missouri consumer fraud statute).
We say retreated because these plaintiffs suredidn’t start small. They soughtnationwide classes – all 50 states – of everyone who purchased the two drugs(except governmental entities) for over a decade. Celexa/Lexapro, slip op. at3. Needless to say the plaintiffs’ graspfar exceeded their reach. The court blewout the nationwide class on the wholly predictable ground that the potentialapplication of 50 states’ law made that whole mess totally unmanageable. First, plaintiffs couldn’t hijack otherstates’ consumers into a single state’s law:
[While] Missouri has an interest in policing thebehavior of corporations within its borders, that interest does not outweighthe justified expectations of consumers that the laws of their home states willapply. Indeed, consumer protectionstatutes are designed to protect consumers rather than to regulate corporateconduct.
Celexa/Lexapro, slip op. at 5-6(citation and quotation marks omitted). The same result applied to another class action under New York’sconsumer protection statute (which isn’t as problematic as the others):
As the Court discussed above with regard to the Missourichoice of law analysis, in the New York case the relevant conduct is the salescalls made to plaintiffs’ doctors. Because that conduct occurred in plaintiffs’ home states, under New Yorkchoice-of-law analysis the law of those states should apply.
Celexa/Lexapro, slip op. at 8-9.
Choice of law was the battle on the nationwideclasses. Once 50 states’ laws wereapplicable, it was lights out on certification:
The intricate nature of certifying a class under the lawof multiple states and the potential for juror confusion has persuaded mostcourts that it is unwise to do so. Courts have been particularly unwilling to certify classes under thelaws of multiple states in cases involving state consumer-protection laws onthe grounds that those laws vary widely state to state.
Celexa/Lexapro, slip op. at 11(citations and quotation marks omitted).
That left only the California state class to bedealt with. It was a little different,limited to allegations about marketing for use in children, an off-labeluse. Even under that statute’s verybroad “likely to deceive” standard, plaintiffs couldn’t muster a predominance ofcommon issues. Once again the learnedintermediary rule rides to the rescue – plaintiffs had to go through theirdoctors to get these drugs, thus so did their California UCL allegations.
It is not sufficient simply to presume all doctors whoprescribed [the drug] were recipients of those misrepresentations. At best plaintiff can show records indicatingthat 6,000 sales calls were made by [defendant’s] sales representatives todoctors in California regarding [the drug]. Plaintiff has not, however, indicated how many of those calls actuallyrelated to promoting off label pediatric use. Furthermore, individual questions will remain as to whether each doctorrelied on those misrepresentations when deciding to prescribe Celexa.
Celexa/Lexapro, slip op. at 15.
The outcome in Celexa/Lexapro was inline with all recent precedent, but still plaintiffs continue to bring thesegrandiose monuments of meritless litigation. Why? Well, now they’ll be able toargue in those few states that allow cross-jurisdictional class action tolling(Ohio, New Jersey, West Virginia, Montana) that every plaintiff who sat aroundand did nothing until belatedly responding to lawyer solicitation should have their statute of limitations tolled forthe lengthy period (over three years) these class actions were pending in theglacial MDL proceedings. And that, in anutshell, is why we strongly oppose such tolling. Plaintiffs should not benefit by bringingmeritless actions.
Although it happened earlier, we also receivedanother case this week, Kallal v. Ciba Vision Corp., slip op. (N.D. Ill. Jan 28, 2013) courtesy of (we think) a PR firm working for KellyDrye (the law firm that won the case). We’re not particular, so since they sent itto us, we’ll give the victors the customary link. Kallalinvolved a voluntary recall of a contact lens for permeability issues, despite“negligible risk.” Kallal, slip op. at 1. Even though he didn’t have alens subject to the recall (id. at 3), the plaintiff sued. Not only that, plaintiff had suffered similareye problems before ever buying the lenses in question – a fact that heneglected to tell his expert witness. Id.at 2-3.
The defect claim was solely based on some of thelenses plaintiff bought being made at the same overseas plant where therecalled lenses were also made. Id.at 3. Essentially plaintiff was arguingguilt by association – that every lens ever made in that facility, whether ornot recalled, should be considered defective because some of the product wasrecalled.
That “wisp of circumstantial evidence” simplywasn’t enough, nor were “speculations” concerning the defendant’s records,which proved that plaintiff could not have purchased recalled lenses. Id. at 5.
Simply suffering an injury (even that’s questionable– given plaintiff’s history of similar problems) isn’t enough to infer adefect:
[I]n the face of [defendant’s] evidence that [plaintiff]could not have been using . . . lenses subject to the recall, [plaintiff] . . . now contendsthat the fact that his lenses were not subject to the recall does not foreclosethe possibility that they were defective for some other reason. This is, of course, possible, but Plaintiffhas not presented evidence that the lenses were defective for any reason atall.
Kallal, slip op. at 4. Plaintiff could simply be allergic, whichdoesn’t give rise to liability. Id.
The plaintiff was floundering, and ratherincoherently attempted reliance on res ipsa loquitur. The court shot that down in light ofplaintiff’s medical history (we knew that would be relevant somehow).
Plaintiff himself complained of similar, if less severe,symptoms even before being prescribed . . . lenses. His bad reaction . . . alone is notenough to create an inference that they were defective in light of manypossible alternative causes of eye irritation while wearing non-defectivelenses.
Id. at 5.
Even though it was akin to making the rubble bounce, the defendant in Kallal hadanother defense – preemption. Thecontact lenses in question were PMA-approved devices subject to preemptionunder Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). That defense raised an interesting quirk wehaven’t seen before, and we’re always looking for preemption issues. Apparently the basis for the recall, ionpermeability, wasn’t even a specification in the product’s PMA. So no matter what, the recall couldn’tconstitute a violation (and thus support a parallel claim) of a nonexistent FDAspecification, and to the extent the plaintiff claimed ion permeability shouldhave been a PMA spec, well, that’s what “in addition to” means:
Plaintiff emphasizes that [defendant] failed to includethe “material characteristic” of ion permeability. . . . [Defendant] points out, however, that[plaintiff] has not established a federal law violation, in part because ionpermeability was not a specification for the lenses prior to the initiation ofthe recall. [Defendant] argues that ionpermeability was a material characteristic” of the lenses, but it was not aspecification that the FDA required [it] to meet.
Kallal, slip op. at 6. Plaintiff thus “lacks admissible evidencethat [defendant] violated federal law when it failed to include ionpermeability specifications on some of its lenses.” Id. at 7.
Thus in Kallal we had preemption in additionto lack of defect or causation. Ever since tic tac toe, three Xsin a row is a win.
We also have a couple of other things thatcontribute to a good week. We received acopy from Mark Behrens, who’s amajor cog in Shook Hardy’s law review article factory, of anew article about litigation tourism in the Philadelphia Court of CommonPleas. It’s Behrens & Silverman,“Litigation Tourism in Pennsylvania: IsVenue Reform Needed?” 22 Widener L.J. 29 (2013). Here’s a copy for our readers.
It’s a good discussion of Pennsylvania’s pro-plaintiff venuerules. To the extent that the articlepresages a push for statutory reform in Pennsylvania, all we have to say is“it’s about time.” We think thepolitical climate in the Commonwealth is favorable to tort reform, but nobody’sdoing anything much lately. We'd like to see real tort reform instead. But all in all, we’d much rather see thePennsylvania Supreme Court fix the problem by rejecting forum shopping – asrecently happened in Illinois. Where courts create a mess, we'd much rather see them fix it.
Finally, it’s also been a good week because we wereable to update our Suzanne Parisian collection. Part of our update is due to collaboration with our former colleagueSean Wajert, now with Shook. He’sprovided us with the following additions:
2005-11-11 Contratto v. Ethicon (post-surgical adhesionbarrier) Deposition
2005-12-16 Contratto v. Ethicon (post-surgical adhesionbarrier) Deposition
2007-11-08 Singh v. Edwards Lifesciences (heart catheter& monitor) Deposition
2008-12-18 McGookin v. Guidant Corp. (pediatricpacemaker) Deposition
2009-02-09 McGookin v. Guidant Corp. (pediatricpacemaker) Deposition
2009-02-19 Slicho v. Boston Scientific (colonic stent)Deposition
2009-08-31 McGookin v. Guidant Corp. (pediatricpacemaker) Trial (a.m. & p.m.)
All of these have been duly added to our Parisian 3.0 master post which details what we know – and what we have – with respect to thegood Dr. Parisian.
But there’s more. We’ve also found out that Dr. Parisian has written fiction beyond whatappears in her expert reports. She’s apaperback writer. Specifically, under thepseudonym of “McLean Thomas,” Dr. Parisian wrote and published her very owngraphic novel. It’s entitled “Twin Cubs of a White Wolf.” As for the subjectmatter, the back cover describes it thusly:
What happens when you search the world for that onespecial love of your life, you find her, and then she turns out to be yoursister? That is the sick and disgusting predicamentthat Jack and Jenny Star find themselves suddenly trapped in. . . .
There’s more, but you get the drift. That’s the kind of subject that will getsomeone’s account canceled at most fanfiction sites – so, yes, we’d have to saythat Dr. Parisian has a rather unusual hobby.
Trouble is, if you google the author and title ofDr. Parisian’s book, it’s out of print. Thus for ease of cross-examination, we’ve included a copy of it as part of our Parisiancollection.
A good week indeed.
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