You have to hand it to the Academy of Motion Pictures. Byexpanding the number of Best Picture nominees, it ended up selling lots moretickets. Like many people we know, we try to see all the Best Picture nomineesso as to earn the right to grouse about the Academy’s inevitable injustices(e.g., Oliver! over 2001?! Gandhi over ET?!! Art Carney over Jack Nicholson, Al Pacino, and Dustin Hoffman?!!!). In past years, that meant seeing fivefilms. This year, we need to see nine. So that's almost twice as many movietickets, popcorns, nachos, snowcaps, and slushees. Last weekend we sawSilver Linings Playbook. It is weird that it took us so long,considering the Philly-centric nature of the story. Brad Cooper plays a bipolarpatient who has trouble coping with life, especially the disintegration of hismarriage. He keeps telling himself that he needs to find the silver linings intough situations. His father seems to have a serious case of OCD, especiallywhen it comes to rooting for and betting on the Philadelphia Eagles. (If onewants to make the point that the enterprise of life is rescuing the good bitsfrom a failure pile, it’s hard to come up with a better metaphor thancheering for a Philadelphia sports team.) A psychiatrist tells the Coopercharacter that he needs a “strategy” (presumably that is the “Playbook” of thetitle) to pluck out the glories from the dismal parade of life's indignities.Nevertheless, it’s not clear what sort of strategy would work – beyond, maybe,just being open to the possibility of happiness.
A week ago, we were watching one of our favorite sitcoms,Modern Family. For the first twenty or so minutes, it seemed like a whole lotof nothing. The episode was disappointing. It was flat. But itturned out that it was setting us up for a concluding couple of minutes thatare as brilliant as anything we’ve seen in a while. Levitan et al served up aparody of the conclusion of The Godfather. See it for yourself here. More thana few of our lawyer buddies have a running gag about how the most valuablelessons for life and litigation are contained in The Godfather. What welearned from the Modern Family reenactment of The Godfather is that humancleverness is endless, a long set-up can prepare the way for a sublime punchline, that even in our dotage we can laugh ourselves to tears, and that TyBurrell (again) can make us giddy with stonefaced genius. It soundsoverblown and frivolous, but a tv show managed to amplify our delight in being alive.
For some reason, that excellent television show andexcellent movie put us in mind of a New Yorker article we read many years agoabout a corporate coach named Marshall Goldsmith. Companies invitedGoldsmith to help executives who were smart, driven, and completely successful,save for the fact that they were utterly obnoxious. Goldsmith applied hismodified Zen Buddhism to organizational dynamics and emerged with threerules: (1) Life is Good; (2) Be Happy Now; and (3) Let it Go. Hewas convinced that those three rules are the key to happiness. Stopcomplaining and, instead, appreciate how gorgeous existence is. Donot play the game of 'I'll be happy when' [e.g., when I get that promotion,when I make enough money, when I get that certain someone to love meback]. And if something wrong is done to you, or, perhaps moreimportantly, if you have done something you regret, learn from it, and thenstop obsessing over it. To this day, we think more about that New Yorkerarticle than any other we've read over the past (gulp) 35 years.
Armed with this wisdom and joy and openness, let's dance in the rain of dodgy legal analysis. The case is from the Pradaxa MDL, Inre Pradaxa, 2013 U.S. Dist. LEXIS 7979 (S.D. Illinois January 18, 2013). Theplaintiffs brought a product liability claim against Boehringer IngelheimPharmaceuticals, Inc. ("BIPI") relating to Pradaxa. As we all know, discovery inmass tort cases is a grim slog. There are way too manycustodial files, way too many databases, and way too many things to do with this stuff, including reviews for responsiveness, privilege, and confidentiality. Even then, we haven't scratched the surface of tasks associated with thismountain of documents and terabytes. (De-duplication, anyone?) Responding to this discovery costs a company more money than most civillitigation defendants must pay after being found liable -- yet when we talkabout mass tort defendants responding to discovery, we are talking aboutdefendants who have not yet been found liable for anything. The Americandiscovery regime is, not to put too fine a point on it, insane.
Now consider how much more insane it gets when the plaintiffasks for documents relating to drugs that are not at issue in thelitigation. The Pradaxa MDL plaintiffs asked for documents relating toany lawsuit alleging that BIPI engaged in off-label promotion of any medicineor that BIPI paid kickbacks to induce doctors to prescribe any BIPImedicine. The plaintiffs also asked BIPI to identify witnesses relatingto such lawsuits, and employees who participated in the alleged wrongfulactivities. When the plaintiffs inquired about earlier lawsuits, theywere focusing on a qui tam suit alleging off-label marketing of four products, none of them Pradaxa. As part of thesettlement of that qui tam action, BIPI entered into a Corporate IntegrityAgreement ("CIA"). That CIA governed BIPI's conduct as itrelates to all of BIPI's drugs, including Pradaxa.
BIPI objected to the non-Pradaxa discovery requests ongrounds of relevance and burden. That is not surprising in theleast. Nor are the grounds asserted by BIPI surprising: (a) Pradaxais the only drug at issue in the Pradaxa MDL; (b) the sought-for discovery mostly antedates the conduct atissue in the Pradaxa litigation; and (c) obtaining the non-Pradaxa informationwould "impose a great expense and an undue burden." 2013 U.S.Dist. LEXIS 7979 at *9. The plaintiffs, you will be shocked to learn,disagreed. They argued that the non-Pradaxa materials might lead toother acts evidence admissible under Fed. R. Evid. 404(b), that impeachment ammo might surface,and that evidence of improper conduct would be relevant on the issue ofpunitive damages.
We are displeased to report that Chief Judge Herndon bought more arguments from theplaintiffs than the defendant. The court begins by observing how"federal discovery rules are liberal in order to assist in the preparationfor trial and settlement of litigated disputes." Id. at *11-12. Sometimes the beginning gives you a clear idea of the end. Think of Reservoir Dogs. Or Citizen Kane. Sometimes you just knowyou're not headed for a happy ending. In this case, the unhappy ending is the virtual disappearance of any notion ofproportionality in discovery. Okay, so the rules ofdiscovery are liberal. Boy, are they ever liberal. But theyare not limitless ... are they? The court cites Fed. R. 26(b)(1). Remember that.
The court reads the Pradaxa MDL complaint to assert"allegations related to the manner in which Pradaxa wasmarketed." Id. at * 13. Then here's the kicker: "Itis entirely possible that the marketing policies and strategies at issue in thequi tam action extended to BIPI's marketing of Pradaxa." Id. at *15. Later, in addressing the issue of undue burden, the court ... well,the court does not really seem to care about that issue very much. First,the court "finds that this evidence is extremely probative." Id. at *19. Really? That information the relevance of which is "entirelypossible"? Anyway, that is not a burden point. What the courtdoes say about burden is that the "identity of witnesses and documentationsought is not that extensive in relative terms." Id. Sorry,but that conclusion (and it really is nothing more than a conclusion; there isn’teven a smidgen of factual support) seems profoundly wrong. The information relating to the earlier lawsuit may be, as the courtsays, "obtainable," but we'd make a wager bigger than any wager theDeNiro character makes in Silver Linings Playbook that production of thosematerials will be massive and expensive. What are the "relativeterms" that the court alludes to? Relative to an ordinary case? Relative to the rest of the massive production in the case? Relative toall the paper and data in the world? Relative to our nation’s GDP?
Remember when we mentioned how the court mentioned Rule26(b)(1)? What about 26(b)(2) (Limitations on Frequency and Extent) or26(g)(1)(B)(iii) (signing a request for discovery is a certification that thediscovery sought is "neither unreasonable nor unduly burdensome orexpensive, considering the needs of the case, prior discovery in the case, theamount in controversy, and the importance of the issues at stake in theaction")? We do not see how the non-Pradaxa discovery requestssatisfy a rigorous application of the benefit vs. burden balancing test. Yes, as any former federal prosecutor will tell you, Rule 404(b) is a rule ofinclusion not exclusion. But "other acts" evidence is usuallyfairly unnecessary, tangential stuff and it is still hemmed in by Rule 403(undue prejudice). Accordingly, if production of the 404(b) materialinvolves significant time, effort, and expense (and please do not ignore theexpense issue just because the defendant is a large corporation, because thatis not part of the balancing test nor should it be), then we think the sideshowof other acts evidence should be shut down.
There is a scene in Silver Linings Playbook where Cooper,disgusted with the unhappy ending in A Farewell to Arms, heaves the bookthrough the bedroom window. Hemingway's book streaks through the nightand plops on the middle of an Upper Darby street. It lays there, no doubtstunned at the insult. Poor thing. It’s not such a bad book. We were tempted to treat the Pradaxa opinion with similar belligerence. But it is only six pages long, so it would merely bounce off our officewindow. Then we thought about Silver Linings. And we thought aboutlaughter. And we thought about Marshall Goldsmith and his threerules. Is there a way to fend off our unhappy feelings about the battydiscovery ruling in Pradaxa?
There are a couple of things. We've been on panelswith Chief Judge Herndon and we like and respect him. He has a good senseof humor. We are not saying that the Pradaxa opinion is a joke (wishfulthinking, that), but we should pay attention to the nice parts of the opinion,especially understanding how difficult and enervating it is to resolvediscovery disputes. There are some things in the opinion you might evenwant to cite in the face of overreaching plaintiffs. In seeking aprotective order, BIPI attached a sealed document. Ever the opportunists, theplaintiffs requested that the document be unsealed. The court denied theplaintiffs' motion without breaking a sweat. Id. at * 12. The courtalso narrowed the non-Pradaxa discovery by timeframe -- it had to be 1990 orlater. Not great, but it's something. The court also did not get tothe plaintiffs' punitive damages justification for the discovery, so we dodgeda bad law bullet there.
Life is still good. In our experience, when plaintiffsget broad-ranging, additional discovery of things that should not matter, thethings discovered seldom help their case much. Meanwhile,plaintiff-specific discovery inevitably reveals that a huge chunk of the MDL inventory ispure, unmitigated junk. Can we be happy now? Of course we can(though we are still grieving over that last episode of Downton Abbey). Abad discovery ruling does not diminish the delight we experience from a jobthat surrounds us with smart, engaging people, or from the Drug and Device LawSon bringing home an A on his latest French test, or from a praline dessert wecannot stop thinking about. Can we let the Pradaxa ruling go? Sure. It is annoying and wrong, but it is, “in relative terms,” a minorskirmish. There is more day to dawn. We look forward toreporting on the silver lining.
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