Monday, January 16, 2012

Rules Matter, Part 2

Dr. Martin Luther King, Jr. once said, “Justice denied anywhere diminishes justice everywhere.” Maybe simply setting out that quotation, and not-so-simply meditating on it, would constitute an appropriate gesture on this day of service.

But, as usual, we have a few extra words to say before returning to the observances and pleasures of the holiday. Justice is not exactly the same thing as following rules. In fact, Dr. King showed that justice sometimes requires one not to follow the rules. That being said, the concepts of justice and consistent adherence to rules certainly reside in close quarters.

We’ve been thinking about rules while we spent much of the last few days watching contact sports. The National Football League had its best weekend of the year, and Ricky Gervais did his usual, tasteful job of hosting the Golden Globes. Rules played a big role for both. In football we expect enforcement of the rules. The Golden Globes is all about the violation of the rules (mostly by drunken entertainers and journalists whose immigration documents should be carefully checked -- perhaps twice). Nothing makes any sense without rules, even if those rules operate arbitrarily. Coloring outside the lines is cute only because there are lines. But, as lawyers, we're not out for cuteness. (Yes, we know: it shows.) We talk about the rule of law.

Understanding and following the rules is supposed to be a big part of what we do. That being said, it's almost surprising when judges enforce technical rules against plaintiffs who claim serious injuries. Sometimes the enforcement process threatens to become like the National Basketball Association, where referees don't call travelling or carrying if it looks like the player didn't obtain any advantage from the violation. In some courtrooms, the only thing judges ask about is whether there's any prejudice from a violation, not so much whether there was a violation. By contrast, last week we were pleased to report about a judge in the Aredia/Zometa litigation who actually followed the rules and employed them.

Well, the Aredia/Zometa defendants are on a roll. Our friends Joe Hollingsworth and Robert Johnston sent us another example where a fastidious federal judge applied the rules to dismiss a complaint. This happened on January 12, and what the judge specifically did was reject a plaintiff's untimely effort to designate a retained expert witness on specific causation. Harvey v. Novartis Pharms. Corp., No. 2:06-CV-1140-VEH (N.D. Ala. Jan. 12, 2012). The Harvey case was, for a time, part of the Aredia/Zometa MDL in Nashville, for which the appellate court is the Sixth Circuit. Later, the case was remanded to S.D. Alabama. While this case was still part of the MDL, it was subject to the case management order, which controlled the key deadlines. Pursuant to the CMO, the plaintiff in Harvey (originally Ms. Harvey, who suffered from cancer, and subsequently, after she died from cancer, her son) was required to file expert reports by February 21, 2011. The plaintiff (at that point Ms. Harvey's son) complied with the expert designation deadline by naming only the treating oral surgeon to testify about specific causation. That is, the plaintiff declined to designate a retained expert on the issue of specific causation, i.e., whether the drugs caused Ms. Harvey to develop osteonecrosis of the jaw. Op. at 3.

At the time that expert designations were due, the Aredia/Zometa MDL judge had already granted summary judgment in several other MDL cases in which the plaintiffs were represented by the same counsel as Ms. Harvey on the ground that those plaintiffs had not established that their treating physicians were qualified to provide specific causation evidence and had failed to designate any retained experts on that issue. Those summary judgments were later affirmed by the Sixth Circuit. Thomas v. Novartis Pharmaceuticals Corp., Nos. 09-6147, 09-6272, 09-6274, 2011 WL 3701816 (6th Cir. Aug. 23, 2011). We blogged about Thomas here. The Harvey case was remanded to S.D. Alabama on July 26, 2011. Alabama is in the Eleventh Circuit, not the Sixth Circuit.

Following remand, and following the Thomas decision (though not immediately following), the plaintiff moved pursuant to Fed. R. Civ. P. 16(b)(4) to modify the schedule to name a new expert. Op. at 4. Rule 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge’s consent.” Under Eleventh Circuit precedent, a schedule should not be modified unless it cannot be met despite the due diligence of the party seeking the extension. So it all comes down to diligence. The plaintiff argued that he had no reason to believe that he needed to retain an expert witness on specific causation until after the Sixth Circuit affirmed the judgment in Thomas and stressed the importance of testimony on specific causation to the viability of his case.

The district court rejected these arguments, concluding that the plaintiff had not shown diligence sufficient to establish "good cause" under the rule. Op. at 8. Instead the court held that at the time expert disclosures had been due in the MDL, the plaintiff's counsel had "firsthand knowledge of potential obstacles pertaining to expert testimony on specific causation" due to his direct involvement in the Thomas cases. Op. at 8. Moreover, the Sixth Circuit decision was an unpublished opinion that was not controlling on the S.D. Alabama and, in any event, it’s not as if it was a bolt from the blue for a court to hold that treating doctors cannot opine on causation unless they are qualified to do so.

The court also observed that several other plaintiffs in the same group of cases had sought additional time to name a retained specific causation experts in the MDL given the Thomas rulings. Op. at 9. The “reactive” nature of the plaintiff’s motion in the wake of Thomas did not support a finding of due diligence. Id. The court stated that "any litigation tactic or strategy, such as waiting on an appellate decision" needed to be made within the time limits imposed by the MDL court. Op. at 10-11. The court also rejected the suggestion that the importance of the testimony to the plaintiff's case could substitute for a diligent effort to comply with the rules Op. at 10. In the end, the court found no evidence of diligence on the part of plaintiff and denied the motion. Op. at 11. Rules are rules.

We also think that justice was done in that case.

Happy Martin Luther King, Jr. Day.