We’re doing it again. We’ve prepared our top ten lists for 2008 – the top ten best, and the bottom ten worst drug and medical device product liability decisions of the year – our second full turn of the calendar in the blogosphere. You might think we’d start with the top ten, but that would mean closing out the year on a very sour note. So we’re working from the bottom up.
These are our choices for the ten worst drug and medical device product liability cases in 2008:
1. Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008). It’s only an intermediate appellate court decision, but the implications are staggering. The court held that the manufacturer of a pioneer (name-brand) drug can be liable for the inadequate warnings on a competing generic product. The mere label (“misrepresentation”) on the cause of action throws out 50 years of justifying product liability on the basis that the party profiting from the product should bear the burden of compensating product-related injuries. We posted on Conte here and here.
2. In re Zyprexa Products Liability Litigation, 253 F.R.D. 69 (E.D.N.Y. 2008). It’s Judge Weinstein. It’s a class action. That means that the result favors the plaintiffs, and the certification order is accompanied by a plausibly reasoned (if you think all class actions should be certified) opinion that goes on forever. Having had class certifications shot down by the appellate courts on market share, nuisance, and consumer fraud, this time Judge Weinstein tries non-reliance RICO. So it’s off to the Second Circuit again. Our post on this monster, here.
3. Hyman & Armstrong, P.S.C. v. Gunderson, ___ S.W.3d ___, 2008 WL 1849798 (Ky. April 24, 2008). In federal court, Parlodel stroke cases have almost always been thrown out on Daubert grounds - no scientific basis for causation. In Kentucky, they go to the jury and produce eight-figure verdicts – and they get affirmed by the Kentucky Supreme Court on the basis that you can prove causation with a dog and pony show featuring a bit of this and a bit of that, when none of the bits are valid science in and of themselves. We commiserated on Gunderson here.
4. Johnson v. GlaxoSmithKline, 83 Cal. Rptr.3d 607. (Cal. App. 2008). It's more class action shenanigans. The plaintiffs had sought class certification twice in federal court, first of a nationwide class and then of a California state class, both times using the same class definition, except for geographic scope. They lost both times. So the same lawyers, switching nominal plaintiffs, take a third bite at the apple in California state court. The trial court holds them to the result in their first chosen forum. The appellate court reverses, refuses to follow prior intermediate appellate authority in the state (something that’s allowed in California) and holds that plaintiffs can keep on looking until they find some judge (at least in California) that’s willing to certify their twice-rejected class. We blogged about Johnson here.
5. Smith v. Alza Corp., 948 A.2d 686 (N.J. Super. A.D. 2008). Just when things seemed to be improving in New Jersey, we get this awful choice of law decision. Essentially ignoring two New Jersey Supreme Court decisions (Rowe and Sinclair), the court applies New Jersey law to a case having nothing to do with the state (other than the defendant having shipped the product in question from New Jersey). The court goes on to hold that it would apply the New Jersey consumer fraud statute to an Alabama transaction because the New Jersey statute is “better” – meaning that it imposes more liability with looser standards. We discussed Smith here.
6. Rimbert v. Eli Lilly & Co., 577 F. Supp.2d 1174 (D.N.M. 2008). Ignoring several New Mexico appellate decisions, as well as settled Erie principles that diversity courts should not predict expansions of state-law liability, the court predicts that New Mexico would reject the learned intermediary rule – and it takes more than 100 excruciating pages to explain itself. We posted on Rimbert here.
7. Warner-Lambert v. Kent, 128 S. Ct. 1168 (2008). Yeah, we know, it’s only a non-precedential 4-4 affirmance, but frankly, we thought we’d win. Because we didn’t, and because Kent leaves something of a cloud over the unanimous holding in Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), that fraud on the FDA claims are preempted, we’re putting it on the list. For another of our posts on Kent go here.
8. Knipe v. SmithKline Beecham Corp., 2008 WL 4090995 (E.D. Pa. Aug. 28, 2008), reconsideration denied, interlocutory appeal granted (E.D. Pa. Oct. 28, 2008). Strange things happen in preemption cases. One would have thought that Colacicco (see next week) killed SSRI suicide cases, at least in courts obligated to follow Third Circuit precedent. Knipe proves that any controlling precedent can be distinguished if the court is sufficiently determined. We discussed Knipe here, and here.
9. (jointly) American Home Products Corp. v. Ferrari, 668 S.E.2d 236 (Ga. 2008), and Moreland v. Austin, ___ S.E.2d ___, 2008 WL 4762052 (Ga. Nov. 3, 2008). Strange things happen in tort preemption cases – especially in the Georgia Supreme Court. When a preemption ruling would aid the defense, in Ferrari, the court employs a presumption against preemption to adopt an extremely strained (we’re being polite) reading of legislative intent that would shock Congress, and is rejected by every other court to consider the Vaccine Act. When a preemption ruling would aid plaintiffs, the court finds in Moreland that state-law precedent allowing informal interviews by defense counsel is preempted by HIPAA, even though that statute expressly exempts litigation – with no presumption in sight. We blogged on Ferarri here.
10. Tucker v. SmithKline Beecham Corp., 2008 WL 2788505 (S.D. Ind. Sept. 19, 2008). On reconsideration, the court retracted a pro-preemption ruling in a SSRI suicide case. During the course of the opinion, the court engaged in some rather unusual analysis, with which we disagreed, here. Needless to say, we think the court got it right the first time.
That’s it for our rundown of the coals we found in our stockings this year. From here, there’s nowhere to go but up.
And to all our readers HAPPY HOLIDAYS! Drop by next week for the our review of the drug/medical device decisions we liked the best.