Wednesday, September 12, 2012

Texas Two-step Thwarts Generic and Conte Claims/Conte Comes up Snake-eyes in Nevada

Don't expect us to mess with Texas. Some of our best friends live in Texas. You've probably heard the saying, "A good friend will help you move, but a really good friend will help you move a body." If we ever got in a terrible jam, the first friend we'd call lives in Ft. Worth. He's got a way of seeing things straight and lending a hand without hesitation. At the same time, some of our best frenemies also live in Texas. There are Texas plaintiff lawyers with whom we've held marathon mutual clobbering sessions, but who have also earned our respect, trust, and, Heaven help us, affection. There is something undeniably admirable about Texans. Sure, there's the usual stereotype about bigness and brashness, but that isn't what we mean. Everybody we've ever known from Texas tends to announce that things are Right or Wrong, without nuance. There is a pose of certainty that can be either comforting or infuriating. The Texas landscape is devoid of shades of gray.

A typical maneuver by a Texas plaintiff lawyer deposing a company witness is to confront the witness with an icky document and then demand an admission that company conduct is "Wrong" -- not inaccurate or illegal, but "Wrong." (We swear we can actually hear the capital W in the question.) For example, the document might seem to evince off-label promotion. "That's Wrong, isn't it?" Well, it might not be scientifically wrong. It might not be morally wrong if it is communicating valuable information that will help heal or save lives. It might not be legally wrong, because of certain exceptions that the FDA has recognized. Heck, it might not be legally wrong because of a little thing called the First Amendment. But once a witness starts hemming and hawing about details or exceptions, it starts to look like an Animal Planet episode on weasels in distress. Meanwhile, the plaintiff lawyer comes across as somebody asking good, simple questions. Inquiring minds want to know, etc. You might even get a disarming/smarmy "Can you help the jury please, Ma'am?" A lawyer does not have to hail from Texas to employ this technique, but it helps. Maybe it's the accent. Maybe it's the Old West gunfighter mythology. Whatever - Texans exude courage and clarity. Let's face it: Texas is the anti-France.

Texas judges also have a way of stating things clearly and directly. A recent example is Phares v. Actavis-Elizabeth LLC, 2012 U.S. Dist. LEXIS 123858 (S.D. Texas Aug. 30, 2012). It is yet another good Mensing progeny case where a plaintiff claimed tardive dyskinesia from metoclopramide and where a court held that the claims against generic manufacturers were preempted. We've lately been reporting on such cases with mind-numbing monotony, but Phares is worth a look because it lassoes a couple of goodies together. The plaintiff sued both the generic and brand manufacturers. The claims consisted of the usual menagerie: negligence, negligent misrepresentation, fraud, strict liability, breach of warranties, and deceptive trade practices. Plus, the plaintiff added a claim of suppression of evidence. That last one puzzled the court as much as it puzzles us, and got tossed for the straightforward reason that it does not exist. The court held that all the rest of the claims against the generics were preempted pursuant to Mensing. The plaintiff argued that Mensing applies only against a failure-to-warn claim, but the court had no difficulty concluding that "[n]o matter how she casts her claims" the plaintiff was essentially complaining of a failure to warn. 2012 U.S. Dist. LEXIS 123858 at *15. The plaintiff also cited a variety of cases discussing express preemption, but the court was uninterested because Mensing preemption (implied/conflict) is different.

Further, as many of you know, Texas has a dandy law creating a rebuttable presumption of non-liability in prescription drug suits. If the warnings in question were approved by the FDA, the plaintiff's claim is as doomed as a Dallas Cowboys fan in South Philly. The only exception is if the plaintiff can show that the defendant withheld information from the FDA. As we said in Monday's post (talking about New Jersey law), we think that sort of thing is preempted by Buckman. The Texas federal court pretty much thinks the same thing, except it hung its Stetson hat on Lofton v. McNeil Consumer & Specialty Pharms., 672 F.3d 372, 380 (5th Cir. 2012). Under Lofton, any claim by a plaintiff of fraud-on-the-FDA is preempted unless the FDA itself has found fraud. We have mentioned Lofton before. We like Lofton. We think Lofton is much better than the execrable Desiano case from the Second Circuit, which somehow found a way not to apply Buckman to fraud-on-the-FDA when it is an exception as opposed to a cause of action. Right now, we are thinking much happier thoughts about Texas than New York. Nothing new, really. We'll take brisket over a dirty-water hot dog every day of the week. Anyway, there was no FDA fraud finding in Phares, so adios to the failure-to-warn theory. It is all hat and no cattle. That dog won't hunt. [Now fill in your own overused Southwestern cliché.] Oh by the way, to the extent that the plaintiff was asserting any sort of fraud on anyone, the pleadings did not meet the heightened pleading standard of Fed. R. Civ. P. 9(b).

As we mentioned, the plaintiff did not sue only the manufacturer of the generic drug (which she used), but she also sued the manufacturer of the branded drug (which she did not use). The Phares court begins its discussion of these claims by making the (what we would have thought was self-evident) point that this case is a products liability case. That rather elementary classification is a Big Deal because the court makes an "Erie guess" that under Texas law the imposition of product liability is precluded when the defendant did not supply the product that caused the plaintiff's injuries. 2012 U.S. Dist. LEXIS 123858 at *27-28. Good guess, that. The plaintiff was arguing, of course, for Conte-type liability to be applied to the brand manufacturer. But we are in Texas, not California. Nor are we in Vermont (home of Green Mountains, Ben and Jerry's, snowblowers that have more miles on them than the family car, and the abominable Kellogg case). There is simply no way the Texas federal court was going to make an Erie guess that the Texas Supreme Court would embrace the Conte lunacy. The plaintiff argued that Mensing changes the game, presumably based on the notion that if plaintiffs' claims against generics are preempted they must be able to sue someone. Every wrong has a remedy, right? Wrong. As the Phares court observes, "Plaintiff ignores the federal decisions issued post-Mensing that decided Mensing does not affect state law products liability principles." Id. at *30. The Phares court cites a string of federal cases that say Conte is wrong. Check that; Conte is Wrong. Now you can add Phares to that list.

We cannot offhand think of any close friends that we have in Nevada, though we've had plenty of good times at a palace there run by some guy named Caesar. We could even imagine your blogging crew as a Legal Rat Pack. Bexis would be Sinatra, Sullivan would be Dino, Yeary would be Shirley MacLaine, leaving your current scribe as … Joey Bishop. Rats, indeed! Anyway, Nevada isn't just fun and games. Yes, there's Vegas, Reno, Tahoe, Hoover Dam, stupid bets on the Iggles to win the Super Bowl, and 3 am visits to the Argentinian Plate-Spinner Revue. But there's also real law being made in Nevada. Very good law was made in the case of Baymiller v. Ranbaxy Pharmaceuticals, Inc., No. 3:11-cv-858-RCJ-VPC (D. Nev. Sept. 6, 2012). The plaintiffs alleged that a woman who took a generic version of Paxil suffered a psychotic episode that caused her to kill her husband and harm herself. The plaintiffs sued the brand and generic manufacturers, as well as the retailers. The causes of action included strict liability, negligence, breach of warranties, misrepresentation, and abuse of an elderly person. There was a stipulation dismissing the generic manufacturers, presumably on Mensing grounds, and the retailers won motions to dismiss. That left Glaxo, which manufactured brand name Paxil, a drug that the woman had not purchased or use. Put another way, the only party left was the one that had absolutely no relationship with the plaintiffs.

Glaxo relied on a couple of federal cases that had rejected Conte: (1) Moretti v. Wyeth, Inc., 2009 WL 749532 (D. Nev. 2009); and (2) Foster v. Am. Home Prod. Corp., 29 F.3d 165 (4th Cir. 1994). Foster is a well-reasoned case and was also cited in Phares. Moretti was from a federal court in Nevada, so one would think that it might carry some sway with a federal court in Nevada. Conte, by contrast, is a nutty decision, and it did not grow any less nutty in the wake of Mensing. The only other federal court in the Ninth Circuit to look at the effect (really non-effect) of Mensing on Conte and Foster is Phelps v. Wyeth, 2012 WL 1499343 (D. Oregon 2012). The Phelps court was applying Oregon law, but its reasoning was relevant to the Nevada federal court inasmuch as the plaintiff in Baymiller did not really offer any insights on Nevada law. The Baymiller court sorts through all this case law in some detail and we are pleased to report that it arrives at the right result. Conte never makes it across the Nevada border, not even to one of those casinos perched just over the state line. The Baymiller decision is nicely written and thoroughly reasoned, and we commend it to your attention, but its holding boils down to this: if someone was injured by a generic drug, the manufacturer of the brand drug owes no duty to that unfortunate someone. That reasoning applies to claims for strict products liability (did not sell the product), negligence (owes no duty of care), breach of warranty (did not issue a warranty to the plaintiff), or abuse of the elderly (did not have anything to do with the elderly person).

We are happy to fire off a salute to Texas and to double-down on Nevada. Especially on the day after our home jurisdiction gets spanked by the Chamber of Commerce for hostile courts, it is nice to read a couple of opinions that get important issues right.