Monday, September 24, 2012

So You’re Telling Me There’s a Chance

Anything can happen. You’ve probably heard the claim that a million monkeys in front of a million typewriters would eventually type one of Shakespeare’s sonnets.  But good luck waiting for the release of “A Monkey’s Immortality Sonnet.”  In sports, old-time Dodger fans used to say, “Wait’ll next year,” and the next spring they thought, “Anything can happen.”  That is, until summer passed, and the Brooklyn Bums disappointed them again.  “Anything can happen” makes for great drama in movies too.  A barely .500 club fighter from South Philly wins the heavyweight title.  But it took two movies.  Bobsledders from tropical Jamaica go to the Winter Olympics.  Oh, wait, that was real.  But they didn’t win. 
In musings, sports and entertainment, “anything can happen” can be a source of fun and inspiration.  Not so much in the courts. 
Bonander v. Breg, Inc., 2012 U.S. Dist. LEXIS 132620 (D. Minn. Sept. 18, 2012), is a summary judgment opinion in a failure to warn pain pump case.  The doctor who inserted the pain pump in the plaintiff’s shoulder said he never read the product label.  Id. at 5.  He didn’t listen to sales reps.  Id.  He didn’t spend a lot of time reading Dear Doctor Letters and didn’t remember reading one from the defendant.  Id.  He didn’t expect medical device companies or their sales reps to be the ones who supplied him with information about the risks and benefits of their medical devices.  Id.  He relied instead on his training, the literature and his interaction with colleagues.  Id. 
So the defendant moved for summary judgment: no causation because a different warning from the defendant wouldn’t have mattered to this doctor.  Id. at *1.  He wouldn’t have looked at it, much less considered it. 
Sounds like a winner, right?  Unfortunately, anything can happen. 
The court denied the motion.  The reason?  Four years after the plaintiff’s procedure the doctor stopped using pain pumps for shoulder surgeries after seeing an article in a medical journal that linked pain pumps and the type of injury that the plaintiff had.  Id. at *8.  But that doesn’t undermine the doctor’s testimony that he didn’t consider risks/benefit information coming from medical device companies.  It underscores it.  He got this information from a journal. 
The court conceded that the doctor “did not rely on medical device companies to provide such information,” but concluded nonetheless that the doctor “may still have responded to a warning” that was communicated to him.  Id. at *11.  This reasoning has us thinking of Lloyd Christmas: “So you’re telling me there’s a chance.   
The court also said that the doctor never “foreclosed the possibility” that he would have heeded a warning communicated to him by the defendant.  Id. at *7-8.  But more important, it seems, is that he never opened it.  We don’t think that summary judgment should be defeated by mere possibilities.  Inferences must be “reasonable.”  
Remember, this was summary judgment.  The plaintiff already had discovery and an opportunity to seek evidence and testimony from the doctor.  It wasn’t early spring in 1951 Brooklyn.  It was late summer with the Dodgers out of the pennant race.  Much like all those early Dodger seasons (at least, pre-1955), we think the court should have put an early end to things.

1 comment:

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