Thursday, December 01, 2011

Guest Post - A Tale of Two Books

The following post is by our blogger emeritus, Mark Herrmann, now moved on to greener cyber-pastures.  He gets all the credit and/or blame for what follows.  He also suffers from some misconceptions (what else is new) which we'll correct:

(1) Vale, not Bexis, is responsible for the MDL section of our competing work, so don't blame Bexis.

(2) We'd have done more with the trial practice section, except our trial lawyers are too busy trying cases to sit down with us - but maybe Herrmann will give us some ideas.

(3) Bexis would have been happy to collaborate with Herrmann on a treatise, except that his firm at the time (not Dechert) wanted to keep the publishing opportunity for itself.  Blogging?  Nobody knew what to make of that at the time.

Now on with the guest post

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I’m back from the dead.


You may remember me from 2006 through the end of 2009, when I co-hosted this blog along with Bexis.  As a result of that blogging, Oxford University Press solicited Bexis and me to write a treatise about defending drug and device cases.  Bexis declined, because he’d already written a definitive work on that subject:  James M. Beck & Anthony Vale, Drug and Medical Device Product Liability Deskbook, available here (publisher) and here (Amazon) (Law Journal Press 2011).  But I accepted, and promptly left the private practice of law (and the defense of drug and device cases) eight months later to go in-house.  The book project nonetheless carried on, and the finished result was just released: Mark Herrmann & David B. Alden, Drug And Device Product Liability Litigation Strategy, available here (Oxford Univ. Press 2012).

So Bexis and I were head-to-head competitors for clients while we co-hosted this blog, and we’re about to become head-to-head competitors for book sales. (What can I say? We’re odd ducks.) But I’m an honest guy:  Here’s why you should buy Bexis’s book and why you should buy mine.

Him first.

Bexis’s book has more encyclopedic footnotes than mine does. (Bexis has a harder butt than I do.  He’s always been able to hammer away at a subject for longer than I could.)  If you want footnotes that provide comprehensive citations about a subject, buy Bexis’s book, not mine.

Bexis’s book does a better job on negligence per se claims. This has always been a pet issue for Bexis, and it would be impossible to outdo his thunder on that issue.  Bexis devotes 17 pages to negligence per se claims.  I noted the issues in two pages and did none of the heavy lifting.  I figure there’s no reason to try to compete with stuff that’s been done before.

Bexis is pretty darn good on some other subjects, too.  He has a chapter devoted to non-manufacturer defendants (pharmacists, physicians, brand name in generic cases, and the like) in drug and device litigation.  And he analyzes some topics that cut across all types of litigation -- for example, removal and punitive damages.  You won’t find those topics in my book, and Bexis has written some good material (I’m sadly forced to admit).

Yeah, his book’s okay. But mine isn’t bad, either.

If you want MDL strategy and tactics (a pet issue of mine), come to me, not what’s-his-name.  My MDL chapter looks at every drug or device case decided by the MDL Panel from the Panel’s creation through the end of 2010, and tells you how often (and under what circumstances) the Panel has granted those motions.  We break down the analysis by time, so you can see the Panel’s recent (slight) trend toward granting motions to centralize.  Need to predict for a client whether the MDL Panel will grant a motion to centralize?  Come to me, not Bexis.

And there’s more!  My MDL chapter gives you the inside scoop on the use of master complaints and direct filing provisions in multidistrict litigation.  Parties often stipulate to those provisions unthinkingly, and the parties may thus unwittingly alter the choice of law applicable to a lawsuit or the reach of the MDL transferee court’s personal jurisdiction.  I always liked the nuances of MDL procedure more than Bexis did, and it shows here (if I do say so myself).

What about picking juries?  Bexis basically blows this off, but my book devotes an entire chapter - 100 pages - to the subject.  Not bad.

There are other differences between the two books, of course. (These puppies are both hundreds of pages in length.) But I’ll stop there.

With all due modesty, Bexis and I (and our respective co-authors) have probably now written the two leading treatises on the defense of drug and device products cases.  As always, however, we’ve played to our respective strengths and preferences, and the books reflect those choices.  Each book fills a slightly different niche. In fact, if you took both books and combined them into one, you’d have one heck of a treatise.

Actually, that’s not a bad idea:  Bexis, why didn’t you and I ever think of combining forces and undertaking some joint endeavor?

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