Wednesday, February 26, 2014

Ninth Circuit Toes the Line on Learned Intermediary and Warning Causation


Any U.S. Circuit Court clerkship should add some sparkle to a resume, but we used to take endless grief about the Ninth Circuit’s reputation for liberalism and for Supreme Court reversals.  Noted pharmaceutical expert and exponent of judicial (though not gastronomic) restraint Rush Limbaugh calls it the “Ninth Circus.”  We clerked for William Norris, a brilliant and fair-minded jurist.  He was considered a liberal and, indeed, he penned many prominent opinions that earned that label.  Way ahead of his time, Judge Norris in the 1980's authored the Watkins decision, which upheld the right of a gay man to serve in the military.  But Judge Norris looked positively antediluvian compared to colleagues such as Judges Pregerson and Reinhardt.  Every couple of years Congressmen from Idaho or Montana beg to split up the Ninth Circuit, complaining that their jurisprudence has been polluted by the wackos in California.  The funny thing is that when conservative jurists assume leadership in the Ninth Circuit (such as Judges Wallace and Kozinski), they inevitably oppose such a split and discover the virtues of the country’s biggest circuit court.  Splitting the Ninth Circuit would do nothing of value; it would merely lead to more circuit splits. Maybe it is because of economies of scale, but the Ninth Circuit is productive in terms of caseloads and opinions.  Plus those judges and clerks in Billings and Boise should want to keep open the possibility of a calendar sitting in Hawaii.   And how can you dislike a court whose Chief manages to insert 215 movie titles into an opinion (Syufy) and who was once upon a time the winner on The Dating Game?   (Don't believe us?  Look here.) 

 

The Ninth Circuit still is at or near the top in the league tables when it comes to Supreme Court reversals (by some measures the Sixth Circuit is ahead), though at times that can feel like a badge of honor.  We remember Judge Pregerson (a wonderful man who welcomed other clerks to his chambers and liked to point out from a window in his chambers down at the LA post office annex where his dad worked many years ago) once mentioning at an oral argument how he had written an opinion on the same subject several years before, only to be reversed by the Supremes.  But, he said, he was subsequently vindicated by “a higher authority”: the Harvard Law Review.  In reality, the reputation ‘enjoyed’ by the Ninth Circuit is much ado about nothing.  Most decisions are unanimous, even when the panel is shared by people perceived to be ideological opposites.  We remember an oral argument we made as an AUSA seeking an upward departure in a criminal sentence because the defendant had slashed a woman’s face to ribbons.  The defendant committed this mayhem on the grounds of a VA Hospital, thus making it a federal crime.  On the panel were Judges Wallace and Reinhardt – the leading conservative and liberal on the court, respectively.  There was a third judge, of course, but he barely got a word in edgewise on this very hot panel.  The court unanimously upheld the upward departure, but Judge Reinhardt used the oral argument as an opportunity to bemoan the paucity of downward departures for deserving crooks.   Nothing in there for us.  We let Wallace and Reinhardt go at it, and collected the affirmance.

 

We’ll always have a soft spot for the Ninth Circuit, and will hasten to rescue it from unwarranted criticism, if only to protect our own c.v.  There is a recent drug case that bolsters our position.  In Luttrell v. Novartis Pharmaceuticals Corp., 2014 U.S. App. Lexis 3133 (February 20, 2014), the court affirmed a defense summary judgment based on lack of warning causation.  The opinion gladdens our heart because of its result, reasoning, and the make-up of the panel.  One of the members of the panel, Judge Fisher, is someone we once interviewed with for a job at his former firm, and later opposed in a hard-fought financial litigation.  Fisher possesses enormous intelligence and integrity.  Any court that can count him as a judge is doing fine.  

 

Luttrell is yet another case where a plaintiff claimed to have sustained osteonecrosis of the jaw (“ONJ”) from bisphonate treatment.  The case was controlled by Washington law which, like most jurisdictions, requires that a plaintiff show proximate cause, composed of both cause in fact and legal causation.  Also as in most jurisdictions, the learned intermediary doctrine requires a showing that the prescribing physician, not the patient, would have taken a different course of action if better warnings had been issued.  The Ninth Circuit opinion is unpublished and short, and both factors possibly contribute to the opinion’s clarity.  Even if juries normally decide questions of causation, such questions may be decided by a judge when “reasonable minds could reach but one conclusion.”  This Ninth Circuit panel turns out to be perfectly reasonable.  The plaintiff contended that either he or his doctor would have taken a different course of action if the defendant had issued better warnings regarding the risk of ONJ, but such contention was belied by the fact that the prescribing physician resumed the plaintiff’s bisphosphonate treatment after his development of ONJ and after the filing of his lawsuit.  Consequently, “[t]he record makes clear that the doctor understood the connection between bisphosphonates and the risk of [ONJ], and that in his medical opinion the benefits of the treatment for the patient outweighed those risks.”   

 

That simple fact situation crops up not infrequently.  Now you can argue that if even the wacko lefty Ninth Circuit can dispose of such a case, so can whatever court you’re in.  Make that reputation work for you.

 

 

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