That would be Dr. Suzanne Parisian, of course. Intruth, we’re not saying Dr. Parisian knows too much. Far from it. It’smore that she always says too much. But we’ve been reading a lot about AlfredHitchcock lately (because of both the Anthony Hopkins feature film,“Hitchcock,” and the HBO movie, “The Girl”), so we couldn’t resistappropriating the title of the only film that Hitchcock made twice. The earlierversion of “The Man Who Knew Too Much” (1934) was Peter Lorre’s firstEnglish-speaking role. The remake (1956) starred Jimmy Stewart and Doris Day.Both films involve couples who accidentally learn about an assassination plot.To assure silence, the malefactors kidnap the couples’ child. In both movies,the wife has a skill that she underplays or puts aside for the sake of domesticfelicity. In the earlier film the wife was an expert shooter. In the latter,Doris Day was – surprise – a singer. Famously, Doris Day calls upon her singingtalent, warbling “Que Sera, Sera” to rescue her child.
Dr. Parisian will sing about pretty much everything. We’vebeen known to complain about that. But in a recent unpublished opinion from theFosamax litigation, Parisian said a little too much, and it cost the plaintiff.Last week we reported on a published opinion from the Fosamax case. Today, we will mention some goodies from the companion unpublished opinion, Inre Fosamax Products Liability Litigation, 2013 U.S. App. LEXIS 2042 (2d Cir.January 30, 2013), including the interesting role played by Dr. Parisian. The plaintiff had brought suit alleging that Fosamax caused osteonecrosis ofthe jaw ("ONJ"). The jury returned a verdict for thedefendant. The plaintiff appealed, challenging jury instructions,exclusion of expert testimony, and admission of evidence of a settlement withanother defendant.
The Second Circuit held that the trial court did not err ininstructing the jury on Florida’s “government rules defense.” Like severalother jurisdictions, Florida statutory law creates a rebuttable presumptionthat a product is not defective where the manufacturer has complied with theapplicable laws or regulations designed to prevent the type of harm thatoccurred. Fla. Stat. Ann. § 768 1256 (1). The plaintiff argued that because shealone offered a regulatory expert at trial, Dr. Parisian, and because Dr.Parisian concluded that the defendant had violated several FDA regulations inselling Fosamax, the District Court erred in concluding that the defendant hadestablished a prima facie case sufficient to support a jury instruction on therebuttable presumption. But it turns out that the defendant managed tomake its prima facie case courtesy of Dr. Parisian. On cross examination,Dr. Parisian conceded that the FDA had approved Fosamax and its labeling. Howcould she do otherwise? The court held that Dr. Parisian's admissionentitled the defendant to the instruction regarding the presumption as a matterof law, notwithstanding Dr. Parisian’s (inevitable) opinion that the defendantalso violated certain FDA regulations. Dr. Parisian’s credibility, moreover –both as to her testimony regarding the FDA approval’s of Fosamax and heropinion that the defendant had violated various FDA regulation – “was an issuefor the jury." 2013 U.S. App. LEXIS 2042 at * 6-7. Que sera,sera.
There was another issue regarding jury instructions and itrelated to Florida law on product risks and benefits. The Second Circuitupheld the “objective” standard instruction, which asked the jury to considerthe risks and benefits of Fosamax to the public as a whole, as opposed todirecting the jury to consider the drug from the perspective of either aparticular user or a sub-category of users. Federal and state courts in Floridahave employed an “objective” standard for the risk-benefit test. See, e.g.,Jennings v. BIC Corp., 181 F.3d 1250, 1255 (11th Cir. 1999) (applying Floridalaw and concluding that “defectiveness of a design is determined based on anobjective standard, not from the viewpoint of any specific user”); LiggettGrp., Inc. v. Davis, 973 So.2d 467, 475 (Fla. Dist. Ct. App. 2007) (same).
The plaintiff argued that the district court erred inexcluding opinions from two of her experts. The opinions concernedregulatory and medical causation issues. First, the plaintiff offeredopinions from a Dr. Epstein about his clinical experience in prescribingFosamax. Those opinions included his "opinion that the FDA is notinfallible." Id. at * 9. The Second Circuit concluded that Dr.Epstein was not "qualified to opine on the quality of the FDA’swork." Id. at *10. He was the Dr. Who Knew Too Little. Second, the plaintiff proffered an opinion from her treating physician, Dr.Marciano, that Fosamax caused her ONJ. "Because Dr. Marciano’sopinion was offered in his capacity as her treating physician, it was properlylimited to his personal knowledge developed during the course of his treatment"of the plaintiff. Id. at *10, citing Fed. R. Evid. 602. But Dr. Marcianodid not personally know the length of time that the plaintiff had used Fosamax;rather, he was relying on another doctor's medical records -- which were not apart of Dr. Marciano's medical records. Accordingly, the Second Circuitheld that Dr. Marciano’s medical causation conclusion was properly excludedbecause it was “largely dependent on and derivative of Dr. Marx’s opinionsrather than any scientific inquiry conducted or treatment provided by Dr.Marciano himself." Id.
The plaintiff also argued that the district court erred byallowing the defendant to reference the plaintiff's lawsuit against herdentist, the resulting settlement of the lawsuit, and the amount of thesettlement. The plaintiff had filed a motion in limine on these matters andlost. After losing her motion in limine, the plaintiff's lawyer frontedthe issue by informing the jury of the lawsuit and settlement in her openingstatement. Further, the plaintiff testified about these matters on directexamination. It is well-established that a party introducing evidence"cannot complain on appeal that the evidence was erroneously admitted,”even when that party loses a motion in limine and then preemptively introducesthe evidence to draw the “sting.” Ohler v. United States, 529 US. 753, 755,757-58 (2000). The plaintiff attempted to distinguish her introduction of thefact of settlement from the defendant's introduction during the plaintiff'scross-examination of the amount of the settlement ($350,000). But thecourt held that the amount of the settlement was admissible to rebut theplaintiff's "suggestion, in her opening statement and direct testimony,that the settlement was negligible because the lawsuit involved her teeth, nother jaw." Id. at *11. That might be another example of hurtingone's cause by saying too much.
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