Friday, February 08, 2013
FInally, A Decent Week
We’ve been on the verge of triskaidekaphobia. So far 2013 hasn’t been a very good year for us, with Weeks, Stengel, Arters, and Wells. At this rate, we could fill up our Worst Decisions of 2013 by mid-March. And yes, we’re not Dr. Pangloss here on DDLaw – we do cover our side’s losses, if rather grudgingly.
But finally this week turned out better, judging by the cases we’ve learned about so far. First and foremost is a case we on the Reed Smith side just can’t talk about very much, since it’s our case. That’s Caplinger v. Medtronic, Inc., No. CIV-12-630-M, slip op. (W.D. Okla. Feb. 6, 2013). All we can say is that it involves PMA device preemption (Riegel), and off-label use issues, and it’s favorable. We’re hoping that our Dechert contingent can give readers an update on just how it’s favorable. Until then, we’ve given you a link – and put it on the medical device preemption scorecard.
We also learned about a good class action decision, In re Celexa & Lexapro Marketing & Sales Practices Litigation, MDL No. 09-02067-NMG, slip op. (D. Mass. Feb. 5, 2013). As readers can tell from our federal and state class action cheat sheets, successful class actions in drug/device product liability litigation don’t happen much anymore, if at all. Indeed, we’ve been following this topic more generally, and we believe that, since the groundbreaking Supreme Court decisions of the late-1990s (Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)), not a single contested personal injury merits class action (as opposed to settlement, where the fix is in) has survived appeal in the federal court system – that’s not just drug/device but any form of personal injury.
Is it any wonder that the purveyors of class actions have turned away from personal injury to economic loss? We don’t think so. But as our cheat sheets indicate, they haven’t done very well there either, at least where drugs/medical devices are concerned. We’re pleased to report that Celexa/Lexapro continues that trend – even though the forum-shopping plaintiffs ensconced themselves in a relatively defense-unfriendly forum (District of Massachusetts) and eventually retreated to invoking extremely defense-unfriendly law (the infamous California UCL, and the less infamous, but we’d say now about equally bad, Missouri consumer fraud statute).
We say retreated because these plaintiffs sure didn’t start small. They sought nationwide classes – all 50 states – of everyone who purchased the two drugs (except governmental entities) for over a decade. Celexa/Lexapro, slip op. at 3. Needless to say the plaintiffs’ grasp far exceeded their reach. The court blew out the nationwide class on the wholly predictable ground that the potential application of 50 states’ law made that whole mess totally unmanageable. First, plaintiffs couldn’t hijack other states’ consumers into a single state’s law:
[While] Missouri has an interest in policing the behavior of corporations within its borders, that interest does not outweigh the justified expectations of consumers that the laws of their home states will apply. Indeed, consumer protection statutes are designed to protect consumers rather than to regulate corporate conduct.
Celexa/Lexapro, slip op. at 5-6 (citation and quotation marks omitted). The same result applied to another class action under New York’s consumer protection statute (which isn’t as problematic as the others):
As the Court discussed above with regard to the Missouri choice of law analysis, in the New York case the relevant conduct is the sales calls made to plaintiffs’ doctors. Because that conduct occurred in plaintiffs’ home states, under New York choice-of-law analysis the law of those states should apply.
Celexa/Lexapro, slip op. at 8-9.
Choice of law was the battle on the nationwide classes. Once 50 states’ laws were applicable, it was lights out on certification:
The intricate nature of certifying a class under the law of multiple states and the potential for juror confusion has persuaded most courts that it is unwise to do so. Courts have been particularly unwilling to certify classes under the laws of multiple states in cases involving state consumer-protection laws on the grounds that those laws vary widely state to state.
Celexa/Lexapro, slip op. at 11 (citations and quotation marks omitted).
That left only the California state class to be dealt with. It was a little different, limited to allegations about marketing for use in children, an off-label use. Even under that statute’s very broad “likely to deceive” standard, plaintiffs couldn’t muster a predominance of common issues. Once again the learned intermediary rule rides to the rescue – plaintiffs had to go through their doctors to get these drugs, thus so did their California UCL allegations.
It is not sufficient simply to presume all doctors who prescribed [the drug] were recipients of those misrepresentations. At best plaintiff can show records indicating that 6,000 sales calls were made by [defendant’s] sales representatives to doctors in California regarding [the drug]. Plaintiff has not, however, indicated how many of those calls actually related to promoting off label pediatric use. Furthermore, individual questions will remain as to whether each doctor relied on those misrepresentations when deciding to prescribe Celexa.
Celexa/Lexapro, slip op. at 15.
The outcome in Celexa/Lexapro was in line with all recent precedent, but still plaintiffs continue to bring these grandiose monuments of meritless litigation. Why? Well, now they’ll be able to argue in those few states that allow cross-jurisdictional class action tolling (Ohio, New Jersey, West Virginia, Montana) that every plaintiff who sat around and did nothing until belatedly responding to lawyer solicitation should have their statute of limitations tolled for the lengthy period (over three years) these class actions were pending in the glacial MDL proceedings. And that, in a nutshell, is why we strongly oppose such tolling. Plaintiffs should not benefit by bringing meritless actions.
Although it happened earlier, we also received another case this week, Kallal v. Ciba Vision Corp., slip op. (N.D. Ill. Jan 28, 2013) courtesy of (we think) a PR firm working for KellyDrye (the law firm that won the case). We’re not particular, so since they sent it to us, we’ll give the victors the customary link. Kallal involved a voluntary recall of a contact lens for permeability issues, despite “negligible risk.” Kallal, slip op. at 1. Even though he didn’t have a lens subject to the recall (id. at 3), the plaintiff sued. Not only that, plaintiff had suffered similar eye problems before ever buying the lenses in question – a fact that he neglected to tell his expert witness. Id. at 2-3.
The defect claim was solely based on some of the lenses plaintiff bought being made at the same overseas plant where the recalled lenses were also made. Id. at 3. Essentially plaintiff was arguing guilt by association – that every lens ever made in that facility, whether or not recalled, should be considered defective because some of the product was recalled.
That “wisp of circumstantial evidence” simply wasn’t enough, nor were “speculations” concerning the defendant’s records, which proved that plaintiff could not have purchased recalled lenses. Id. at 5.
Simply suffering an injury (even that’s questionable – given plaintiff’s history of similar problems) isn’t enough to infer a defect:
[I]n the face of [defendant’s] evidence that [plaintiff] could not have been using . . . lenses subject to the recall, [plaintiff] . . . now contends that the fact that his lenses were not subject to the recall does not foreclose the possibility that they were defective for some other reason. This is, of course, possible, but Plaintiff has not presented evidence that the lenses were defective for any reason at all.
Kallal, slip op. at 4. Plaintiff could simply be allergic, which doesn’t give rise to liability. Id.
The plaintiff was floundering, and rather incoherently attempted reliance on res ipsa loquitur. The court shot that down in light of plaintiff’s medical history (we knew that would be relevant somehow).
Plaintiff himself complained of similar, if less severe, symptoms even before being prescribed . . . lenses. His bad reaction . . . alone is not enough to create an inference that they were defective in light of many possible alternative causes of eye irritation while wearing non-defective lenses.
Id. at 5.
Even though it was akin to making the rubble bounce, the defendant in Kallal had another defense – preemption. The contact lenses in question were PMA-approved devices subject to preemption under Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). That defense raised an interesting quirk we haven’t seen before, and we’re always looking for preemption issues. Apparently the basis for the recall, ion permeability, wasn’t even a specification in the product’s PMA. So no matter what, the recall couldn’t constitute a violation (and thus support a parallel claim) of a nonexistent FDA specification, and to the extent the plaintiff claimed ion permeability should have been a PMA spec, well, that’s what “in addition to” means:
Plaintiff emphasizes that [defendant] failed to include the “material characteristic” of ion permeability. . . . [Defendant] points out, however, that [plaintiff] has not established a federal law violation, in part because ion permeability was not a specification for the lenses prior to the initiation of the recall. [Defendant] argues that ion permeability was a material characteristic” of the lenses, but it was not a specification that the FDA required [it] to meet.
Kallal, slip op. at 6. Plaintiff thus “lacks admissible evidence that [defendant] violated federal law when it failed to include ion permeability specifications on some of its lenses.” Id. at 7.
Thus in Kallal we had preemption in addition to lack of defect or causation. Ever since tic tac toe, three Xs in a row is a win.
We also have a couple of other things that contribute to a good week. We received a copy from Mark Behrens, who’s a major cog in Shook Hardy’s law review article factory, of a new article about litigation tourism in the Philadelphia Court of Common Pleas. It’s Behrens & Silverman, “Litigation Tourism in Pennsylvania: Is Venue Reform Needed?” 22 Widener L.J. 29 (2013). Here’s a copy for our readers.
It’s a good discussion of Pennsylvania’s pro-plaintiff venue rules. To the extent that the article presages a push for statutory reform in Pennsylvania, all we have to say is “it’s about time.” We think the political climate in the Commonwealth is favorable to tort reform, but nobody’s doing anything much lately. We'd like to see real tort reform instead. But all in all, we’d much rather see the Pennsylvania Supreme Court fix the problem by rejecting forum shopping – as recently happened in Illinois. Where courts create a mess, we'd much rather see them fix it.
Finally, it’s also been a good week because we were able to update our Suzanne Parisian collection. Part of our update is due to collaboration with our former colleague Sean Wajert, now with Shook. He’s provided us with the following additions:
2005-11-11 Contratto v. Ethicon (post-surgical adhesion barrier) Deposition
2005-12-16 Contratto v. Ethicon (post-surgical adhesion barrier) Deposition
2007-11-08 Singh v. Edwards Lifesciences (heart catheter & monitor) Deposition
2008-12-18 McGookin v. Guidant Corp. (pediatric pacemaker) Deposition
2009-02-09 McGookin v. Guidant Corp. (pediatric pacemaker) Deposition
2009-02-19 Slicho v. Boston Scientific (colonic stent) Deposition
2009-08-31 McGookin v. Guidant Corp. (pediatric pacemaker) Trial (a.m. & p.m.)
All of these have been duly added to our Parisian 3.0 master post which details what we know – and what we have – with respect to the good Dr. Parisian.
But there’s more. We’ve also found out that Dr. Parisian has written fiction beyond what appears in her expert reports. She’s a paperback writer. Specifically, under the pseudonym of “McLean Thomas,” Dr. Parisian wrote and published her very own graphic novel. It’s entitled “Twin Cubs of a White Wolf.” As for the subject matter, the back cover describes it thusly:
What happens when you search the world for that one special love of your life, you find her, and then she turns out to be your sister? That is the sick and disgusting predicament that Jack and Jenny Star find themselves suddenly trapped in. . . .
There’s more, but you get the drift. That’s the kind of subject that will get someone’s account canceled at most fanfiction sites – so, yes, we’d have to say that Dr. Parisian has a rather unusual hobby.
Trouble is, if you google the author and title of Dr. Parisian’s book, it’s out of print. Thus for ease of cross-examination, we’ve included a copy of it as part of our Parisian collection.
A good week indeed.