One Smelly Product, Two Defendants, and Two Different Results

Out of Illinois comes a medical device case with odd and smelly facts.  Smith v. Phoenix Seating Sys. LLC, 2012 U.S. Dist. LEXIS 127865 (S.D. Ill. Sep. 10, 2012).  The medical device was a wheelchair armrest called the 312G.  The plaintiffs bought it (and, earlier, the wheelchair) from the defendant, Apria Healthcare Group.  Plaintiffs installed the armrest themselves.  Id. at *2-3.  But not right away.  That’s the odd and smelly part.  Plaintiffs claimed that when they first received the armrest in the mail and opened its box, it smelled.  How bad?  So bad that they put it out of the house.  First they put it in the garage for a week.  That didn’t work.  It still smelled.  So they moved it outside – to the patio – for another 3-4 days to air it out.  While the opinion doesn’t make it seem as if this worked completely, it apparently worked enough for plaintiffs to install the armrest. Id. at *3-4.   

That didn’t go so well.  Plaintiffs claimed that each of them then suffered injuries from a toxic combination created by a gel contained in the armrest and the gel’s surface material.  Id. at *6, 17-18. 

They sued two defendants.  One was Apria, whose role appeared to be that of the direct seller.  Id. at *29, 30-31.  Apria faced negligent failure to warn claims.  The other defendant was Phoenix Seating Systems, who designed the armrest (the extent of their involvement in the design seemed to be in dispute), received the armrest from the manufacturer, repackaged it, applied some identifying labeling, and then sent it to Apria.  Id. at *13-14.  Phoenix faced various strict liability claims. 

Alright, so the facts are a little odd.  But what about the summary judgment decision?  Not odd at all. 

Phoenix wanted out because it wasn’t a manufacturer, because there couldn’t be a failure to warn plaintiffs who had such idiosyncratic reactions, and because medical device preemption applied.  The court rejected all these arguments.  Illinois product liability actions, according to the court, apply to “all persons in the distributive chain . . . including suppliers, distributors, wholesalers[,] and retailers.” Id. at *10 (quoting Hammond v. North Am. Asbestos Corp., 97 Ill. 2d 195 (Ill. 1983).  So it didn’t matter that Phoenix wasn’t a manufacturer.  The court also found a fact dispute as to whether the plaintiffs’ reactions were idiosyncratic.  So that argument didn’t work.  As to preemption – and take heed here -- the 312G armrest was cleared under §510(k).  But current law is that preemption only applies to devices approved under the PMA process, not those cleared under §510(k).  While we’ve argued here that it’s time for the Supreme Court to reconsider this, it hasn’t done so yet. 

So no preemption, and Phoenix stays in the case. 

The court saw Apria differently.  There was insufficient evidence in the record to establish that Apria was involved in the manufacture or design of the armrest, or that Apria had reason to know of any problem that needed to be warned about:

Apria alleges it did not manufacture the 312G, take any part in its design, have knowledge concerning the specific materials contained in the 312G, or have knowledge of complaints similar to plaintiffs’ instant grievances. . . .

As plaintiffs’ response does not address Apria’s argument concerning its lack of knowledge, plaintiffs do not dispute such allegations. Moreover, plaintiffs’ complaint does not allege Apria had any role in the 312G’s design or manufacture, or knowledge of the 312G’s alleged defective design or manufacture. Similarly, plaintiffs have not instantly offered evidence demonstrating Apria was involved in the 312G’s manufacture or design, or that other complaints or reactions to the 312G have ever been reported.

Id. at *29, *30-31 (record citations omitted). 

Plaintiffs had only negligent failure to warn claims against Apria, and those claims couldn’t survive summary judgment – not on this record.  Now, just like Phoenix, Apria had a hiccup.  It claimed to be exempt from liability under a “seller’s exception” to product liability claims, but the statute that contained that exception had been declared unconstitutional years earlier by the Illinois Supreme Court.  Id. at *24-45.  So that argument didn’t work.  Fortunately for Apria, its other arguments did.  No duty, no claim – regardless of how bad the armrest smelled.  So Atria gets out of the case. 

Sometimes odd facts make for ordinary law.

Groundhog Day in Illinois in June

            Sometimes we feel just like Phil Connors when he said:  “I told you. I wake up every day, right here, right in Punxsutawney, and it's always February 2nd, and there's nothing I can do about it.”   That about sums up our feelings about the Yasmin/Yaz MDL – We wake up, right here in Southern District of Illinois, and it’s always pharmacist liability and fraudulent joinder, and there’s nothing we can do about it.  We thought the Seventh Circuit had put this issue to bed in Walton v. Bayer Corp., 643 F.3d 994 (7^th Cir. 2011).  But, here we are one year later – and plaintiffs continue to file claims against pharmacies/pharmacists in the Yasmin/Yaz MDL in the hopes of beating diversity and having their cases remain in the South Illinois judicial hellholes (St. Clair County in this case).  Like Phil Connors, plaintiffs seem determined to re-live the same issue over and over again.  Like Phil Connors, plaintiffs make small changes to their argument each time in hope that the result will turn out differently.  But, unlike Phil Connors, we don’t see plaintiffs breaking out of this loop – the issue has been decided and it’s time to move on.

            The most recent case on pharmacy/pharmacist liability and fraudulent joinder is Martin v. Moody’s Pharmacy, 2012 U.S. Dist. LEXIS 80863 (S.D. Ill. Jun. 12, 2012).  And, since this is a repeat performance by plaintiffs, it is somewhat of a repeat performance for us as well.  You can see our prior posts on Walton and pharmacy liability in the Yasmin/Yaz MDL here and here.  In fact, it’s only been a few weeks since the last Yasmin/Yaz pharmacy liability/fraudulent joinder decision.  So we’ll dispose of the basic issues quickly.

      Plaintiff’s failure to warn claim is premised on the allegation that defendants failed to warn about the risks of taking YAZ for someone suffering from arteriovenous malformation (AVM) (a vascular condition which includes a heightened risk of hermorrhage).  Id. at *4.  In addition to suing the manufacturer, plaintiff sued her non-diverse pharmacy and pharmacists.  On that claim, plaintiff Martin, like plaintiffs in the prior cases, tried to rely on a narrow exception to pharmacy non-liability in Illinois where the pharmacist has actual, subjective knowledge of a reason why a particular drug is contraindicated in a particular patient.  Happel v. Wal-Mart Stores, Inc., 766 N.E.2d 1118 (Ill. 2002) See Martin, 2012 U.S. Dist. LEXIS at *18-20 (discussing Happel).  In deciding plaintiff’s motion to remand and the pharmacy defendants’ motion to dismiss, the court found that plaintiff missed the mark on the “actual knowledge” requirement:

the allegations of this most artfully crafted complaint do not specify that [the pharmacy] or The Pharmacist defendants had actual knowledge of the decedent’s AVM condition. There is no allegation that anyone had specifically advised the non-diverse defendants of the decedent’s condition, or that the pharmacy had previously filled prescriptions related to the decedent’s AVM condition, or that the pharmacy had asked about any complicating factors. All that is alleged is that the non-diverse defendants should have known of the risks inherent in YAZ for a person with AVM.

Id. at *10.  And, that’s not enough. 

            But, plaintiff here did try an additional argument that we thought warranted bringing this otherwise been-there, done-that case to our readers' attention.  And it’s about another issue that really sticks in our craw – prohibition of ex-parte, informal defense interviews with treating physicians of plaintiffs in personal injury cases.  Yes, Illinois is one of those states in which defense counsel don’t have equal rights with plaintiffs for informal discussions with treating doctors. 

[W]hen an ex parte communication has taken place between defense counsel and a treating physician, . . . sanctions may be imposed upon the defendant, including reversal of the judgment in favor of  the defendant and the award of a new trial.

Id. at *23-24 (citations and quotation marks omitted) (discussing Petrillo v. Syntex Labs, Inc., 499 N.E.2d 952 (Ill. App. Ct. 1986)).  

We’ve blogged numerous times about the importance of both sides in personal injury litigation – and especially drug/medical device product liability litigation involving the learned intermediary rule – having equal rights to talk to treating/prescribing physicians.  Here is yet another reason – plaintiff’s attempt to extend a ban on informal interviews with treating physicians to pharmacists and thus to prevent defendants from establishing fraudulent joinder.

Plaintiff’s position in Martin is even more absurd given that the pharmacists were themselves defendants, but we’ll get to that in a minute.  First, just a quick reminder of why this issue gets us riled up.  It is not because defendants don’t get to conduct informal interviews of plaintiff’s treating physicians, but rather because we don’t and plaintiffs do.  All we want is for both sides to have to play by the same set of rules.  If that means instituting certain procedural safeguards (like authorizations or notice to opposing counsel) before informal interviews can be conducted – so be it.  As long as those restrictions apply to both plaintiff and defense counsel. This has worked just fine in mass tort litigation in states where defense informal interviews are allowed, like New York and In re Bausch & Lomb Contact Lens Solution Product Liability Litigation, Index No. 766000/2007 (N.Y. Sup.).  See also Arons v. Jutkowitz, 880 N.E.2d 831, 837 (N.Y. 2007) (informal interviews with plaintiffs’ treaters are allowed, subject to notice and filling out some forms).

Unfortunately, a defense ban on informal interviews, such as Illinois’, allows plaintiffs to do whatever they want, while the defendants are stuck having to play solely by the rules of formal discovery.  The type of formal discovery not available at the time of removal -- which takes us off our soapbox and back to Martin. 

In support of the removal petition, the manufacturer-defendant included affidavits from the pharmacist-defendants establishing their lack of knowledge of plaintiff’s medical condition.  Martin, 2012 U.S. Dist. LEXIS 80863 at *25-26.  Plaintiff attempted to exclude the affidavits arguing that they were obtained via improper ex-parte communications with plaintiff’s pharmacists.  Id. at *23.   Plaintiff further argued that because the pharmacy/pharmacists had not entered their appearances in the case, the manufacturer-defendant couldn’t obtain discovery from them.  Like we said, one-sided litigation practices encourage plaintiff trickery.  If the court had favored plaintiff’s argument, plaintiff could put in her own affidavit to support her allegations about conversations with the pharmacists (see discussion of plaintiff affidavit, id. at *27-28) but defendants would be left out in the cold – no formal discovery, no informal discovery, no evidence.

Fortunately, the court readily dismissed plaintiff’s argument on two grounds – the pharmacists were parties to the lawsuit and the ban on communications with treating physicians did not extend to pharmacists:

The Court notes that despite plaintiff's assertion to the contrary, the non-diverse defendants were not required to file an entry of appearance in Illinois courts before consenting to removal in this Court. Nor is there a pharmacist-patient privilege extension of the Petrillo doctrine applicable in this case. To apply plaintiff's logic would be to effectively prohibit defendants joined by a plaintiff to a cause of action from communicating about their defense, a scenario not warranted by Petrillo.

Id. at *24-25.  Moreover, the manufacturer obtained the affidavits through the pharmacists’ counsel, so there was no ex-parte communication.  Id. at *24. 

            If the Yasmin/Yaz MDL is our Groundhog Day, we’re OK watching remand get denied over and over -- at least it’s not February in western Pennsylvania and we aren’t waking up to “I’ve Got You Babe” every morning.

Gotta Love a Classic

            OK, we’ll admit it – we are caught up in the buzz about the new Muppet Movie and are glad we still have kids young enough to use as an excuse to go see it (really, we’d go see it anyway, but nice to have the cover story).  Word on the street is this isn’t a re-boot – Hollywood’s latest term for going back to the well when they can’t come up with an original idea – but rather a return to the 1970s Muppets we all remember so fondly.  One of the secrets to the Muppets’ success – a little something for everyone.  For the kids, the characters are bright and colorful; the songs upbeat and peppy; and for a puppet show, much of the humor is visual and slapstick.   For the adults, we await the appearance of the guest star cameos (Steve Martin, Mel Brooks, Madeline Kahn for the original movie; Jason Segel, Zach Galifinakis and Sarah Silverman for 2011) and the one-liners.  Who can forget such classics as:

Bernie: You, you with the banjo, can you help me? I seem to have lost my sense of direction!
Kermit: Have you tried Hare Krishna?

What about:

Kermit: That's pretty dangerous building a road in the middle of the street. I mean, if frogs couldn't hop, I'd be gone with the Schwinn.

 

We could go on, but we’ll just “hop” right to it (Wacka, Wacka!). 

            In our search for new and exciting cases to bring you this week, we tripped over a few classics ourselves.  So, while not really new or terribly exciting – they do add to our stories.  The first a tale of continued success in extending Pennsylvania prescription drug law to medical device cases and the second a re-affirmation of the need for expert testimony to prove a design defect.  Not as iconic as a bear and a frog on a cross-country road trip in a Studebaker (“Bear left; Right Frog”), but worth citing just the same.

            In Horsmon v. Zimmer Holdings, Inc., 2011 U.S. Dist LEXIS 130415 (W.D. Pa. Nov. 10, 2011), the court dismissed plaintiff’s claims for strict liability, breach of implied warranties and breach of express warranty based on Pennsylvania law.  The claims involved alleged defects in components of a hip implant.  The court quickly rejected plaintiffs’ strict liability and breach of implied warranty claims as not recognized by Pennsylvania.  A few weeks ago, the Eastern District of Pennsylvania did the same thing.  We told you then it wouldn’t be the last time.   Like in that Eastern District case, the plaintiff in Horsmon also failed to allege “any particular affirmation of fact or promise” to show the existence of an express warranty.  Horsmon, 2011 U.S. Dist LEXIS 130415, *11.  No express statement equals no express warranty.  Claim dismissed.  As an aside, the court noted that while the parties disagreed about whether reliance was required for a breach of express warranty claim, the court did not need to reach that issue.  Id. at *13 n.4.  You know our position.

            In a second case that caught our eye, Niehaus v. United Seating & Mobility, Inc., 2011 U.S. Dist. LEXIS 127228 (S.D. Ill. Nov. 3, 2011), the plaintiff’s claims were dismissed on summary judgment for failure to offer expert testimony in support of his design defect claim.  The facts are a bit different than our normal fare.  Plaintiff is disabled and requires use of a motorized wheelchair.  He hired defendant to repair his wheelchair and the defendant gave him a loaner.  Plaintiff was injured when he fell out of the borrowed wheelchair which he claimed had a defective joystick and seatbelt.  Niehaus, 2011 U.S. Dist. LEXIS 127228, *1. 

The court acknowledged both that expert testimony is typically required to maintain a design defect claim and that “the determination of whether expert testimony is necessary . . . is judged according to the facts and issues involved in a case.”  Id. at *6.   The court went on to compare the Niehaus wheelchair scenario to a case involving a crutch that collapsed (we’ll forego the rubber crutch gag, but are reminded of when Kermit first saw the "Doc Hopper's French Fried Frog Legs" billboard and said:  “All I can see are millions of frogs with tiny crutches.”).  Where the product in question was a “simple crutch” and the question for the jury was “whether the crutch performed properly when it collapsed” – the matter was one within the jury’s common understanding and experience and no expert testimony was required.  Id. at *9.  In the case of a wheelchair, with its numerous components and motorized parts, specialized knowledge is required.  So, the court dismissed the case because “it would be pure speculation if the jury were to be allowed to assess the design and manufacture of the wheelchair in the absence of expert testimony.”  Id. at *10. 

Two simple, straightforward cases.  Two good decisions.  Sometimes re-visiting the classics is just what we need.   Like “Drinks are on the House!”  It works every time.  

A New Twist on an Old Favorite

            It is no secret that we are huge fans of the learned intermediary doctrine.  So, when we see it being applied and upheld in modern medical situations, we can’t help but get a little excited.  It is sort of like wondering how new additions to the casts of long-running sitcoms are going to play out (Ashton Kutcher on “Two and a Half Men”; James Spader on “The Office”; Martin Short on “How I Married Your Mother”).  Will they rise to the occasion and challenge the veterans to up their game?  Or, will it be like when Cousin Oliver joined the Brady Bunch – the beginning of the end? 

            So too we watch as courts grapple with the learned intermediary doctrine in the age of direct-to-consumer marketing, WebMD, and Yahoo! Answers.  Yes, people do ask medical questions there too.  What about when a drug manufacturer offers an educational class for patients taking its medication?  That was the question asked of the court in Hernandez v. Schering Corporation, 2011 Ill. App. LEXIS 1055 (Sept. 30, 2011).  The answer was a re-assuring affirmation of the learned intermediary doctrine – and a reminder about just how important the prescriber’s deposition can be.

            Plaintiff was diagnosed with Hepatitis C (HCV) and his physician prescribed interferon.  On his physician’s advice, plaintiff attended an educational class sponsored by the manufacturer.  Hernandez, 2011 Ill. App. LEXIS 1055, *3-4.  It was uncontested that as a result of the medication, plaintiff sustained optic nerve damage and permanent vision loss.  Id. at *7.  Neither the prescriber nor the nurse who taught the class discussed the risk of vision of loss, but the package insert did contain warnings about vision-related side effects.  Plaintiff sued the drug manufacturer alleging both strict liability and product liability negligence and negligence in performing a voluntary undertaking.  Id. at *2.  In upholding summary judgment for defendants on all three claims, the court relied heavily on both what the prescribing physician said and what he did not.  He testified that it was his duty to inform his patient of the side effects of the medication and that had he known of the risk of blindness he would have told the plaintiff.  Id. at *4.  And, he did not testify that had he known of the vision-related risk, he would have changed his prescribing decision.  Id. at *7.  Therefore, any alleged inadequacy of the manufacturer’s warning was not the proximate cause of plaintiff’s injury.  Id.

            In a case clearly governed by the learned intermediary doctrine – where the duty to warn is owed by the manufacturer to the physician, not the patient -- plaintiff attempted to create a voluntary undertaking exception.  Plaintiff’s argument – by conducting classes on the medication, the manufacturer voluntarily undertook to warn patients of the side effects of the drug, thereby foregoing “the protection of the learned intermediary doctrine and assum[ing] the physician’s duty to warn.”  Id. at *12.  The court disagreed.  To impose on the manufacturer a duty to warn the patient directly would “interfere with the physician-patient relationship.”  Id. at *13.  Again, the court cited to the prescriber’s testimony that “sending his patients to the [manufacturer sponsored] class did not relieve him of his duty to provide information on the side effects of the medication.”  Id. at *15. 

[The prescriber] recognized and accepted the responsibility for warning the plaintiffs about the side effects of [the drug]. In this case, to hold that the defendants voluntarily undertook to warn of the side effects of [the drug] would violate the learned intermediary doctrine.

Id. at *16.  The court also rejected the comparison between the educational class attended after the medication was prescribed and direct-to-consumer marketing.

There was no evidence that prior to taking [the] class, [plaintiff] had ever heard of [the drug] until [his physician] prescribed it for him or that he requested that [his physician] prescribe [the drug] to treat his HCV.

Id. 

            So, there was no voluntary undertaking and with the learned intermediary firmly established, there was no proximate cause.  While that was more than enough for summary judgment, the court also ruled that the defendant’s package insert – which “delineated the exact problems suffered by [plaintiff]” was adequate as a matter of law.  Id. at *7.  Under Illinois law, unless the insufficiency of the warning is “so obvious,” expert testimony is required to determine its adequacy.  Id. at *19-20.  Further, “the adequacy of the warning must be judged by whether it sufficiently apprises physicians of the risks.”  Id. at *19.   Therefore, the expert must be someone with specialized knowledge in “what a practicing physician . . . would consider an adequate warning” when making his prescribing decision. 

            Plaintiff here offered the testimony of a doctor who admittedly was a practicing anesthesiologist for one year in Sweden before becoming a marketing expert for drug companies (yes, you read that correctly, plaintiff’s turncoat expert spent years consulting with drug companies on the development of marketing materials and package inserts).  Id. at *21.  Therefore, the court found him not competent to testify as to the adequacy of the warning.  No expert, no failure to warn claim.

            So, while we wait to see whether some of our favorite TV shows withstand their makeovers, we celebrate the fact that the learned intermediary doctrine remains a favorite in courtrooms across the country, with no sign of “jumping the shark.”

Ooee Gooey

When we (well, one of us) were little kids, we watched a TV show called the “Popeye Club.”  The host, Officer Don, would put four paper bags on a flat turntable – three of which were “goody bags” and one contained the infamous “ooey gooey” (mixed live on set, we recall).  Officer Don would turn the turntable so blindfolded kids from the live audience who played the game almost always got the goody bags, but when Officer Don was blindfolded, well….

We may not remember much about our early elementary school days, but we still remember the exaggerated expression on Officer Don’s face when he stuck his hand into the ooey gooey (made from stuff like coffee grounds, fresh broken eggs (shells included), Bosco, ketchup, and cottage cheese).  Nobody could look more grossed out than Officer Don.

Reading the recent opinion in DiCosolo v. Janssen Pharmaceuticals, Inc., 2011 WL 2640801, slip op. (Ill. App. June 30, 2011), was a lot like getting the ooey gooey.  Our expressions would have done Officer Don proud.

The decedent in DiCosolo died from some sort of drug overdose.  She “had access to 11 central nervous system (CNS) depressants immediately prior to her death,” including multiple sedatives (Clonazepam, Bextra, Topomax, Gabapentin), antidepressants (Venlafaxine), opiates (Avinza), narcotics (Duragesic), and barbituates (Butalbital).  2011 WL 2640801, at *1.  The coroner tested her blood for some – not all, a bone of contention – of these drugs.  Finding several present, he initially ruled the death a suicide.  Id.

Then the plaintiff (the decedent's husband) received a recall letter for Duragesic – a transdermal (skin) patch with the narcotic fentanyl as its active ingredient.  According to the recall, “a small percentage” of a certain batch “leaked medication” into the adhesive gel that could possibly cause an overdose.  2011 WL 2640801, at *2.  The decedent’s patches came from the batch.  Id.  The coroner’s blood work also indicated a fentanyl overdose.  Id. at *1.

Plaintiff got a lawyer.  The lawyer prevailed on the malleable coroner to “change[] his conclusions . . . from ‘suicide’ to ‘accident’.”  2011 WL 2640801, at *2.

Then the real fun and games began.  Plaintiff's complaint alleged “that the patch that [decedent] was wearing at the time of her death caused her respiratory arrest and death.”  Id.

However, plaintiff soon had a big problem.

He had kept the product.

Since when is keeping the product a problem?  Most plaintiffs cause trouble for themselves by discarding the product.

Not this one.

Because the plaintiff kept the product, it could be tested – and it was.  Turns out that the patch the decedent wore at her death wasn’t one of the “small percentage” of the recalled product that leaked – something plaintiff did not dispute:

On [irrelevant date], the director of process engineering for defendant . . . examined the preserved patch that [decedent] had been wearing at the time of her death and determined that it did not leak and contained no defect.

2011 WL 2640801, at *2.

Rather than contest that determination, the plaintiff filed a new complaint that targeted – not the patch used at the time of death, but – a patch that had been used the day before.  That patch (the so-called “penultimate patch”) could not similarly be proven non-defective as it “was not available because it was discarded by plaintiff."  Id. at *4.  The plaintiff accompanied the complaint with his too-good-to-be true affidavit that he just happened to remember that particular patch having gel issues, after having said nothing about that before.  Id. at *2.

The court let plaintiff get away with this bait-and-switch, and let him proceed – and ultimately recover to the tune of $18 million – on the Illinois equivalent of the “malfunction theory”/res ipsa loquitur, despite no longer having the product.  Actually, it was precisely because plaintiff no longer had the product:

A plaintiff is not required to present expert testimony that the product contained a specific defect. . . .  A prima facie case that a product was defective and that the defect existed when it left the manufacturer’s control is made by proof that in the absence of abnormal use or reasonable secondary causes the product failed ‘to perform in the manner reasonably to be expected in light of [its] nature and intended function.

2011 WL 2640801, at *3 (citation and quotation marks omitted) (emphasis added).

Yuck.

The court allowed the plaintiff, after the most proximate product was conclusively proven non-defective, to switch theories and target as defectively manufactured a product that the plaintiff no longer retained and that could not be tested.  2011 WL 2640801, at *4.  While any resort to circumstantial evidence is questionable in a manufacturing defect (as opposed to design defect) case, since those defects are inherently non-replicable, what really makes us grimace is how this theory actively encourages plaintiffs to destroy or discard the most crucial evidence in a product liability case, that being the product itself.  That’s the big ooey gooey – the precedential equivalent of coffee grounds and broken eggs.

It’s simply wrong as a matter of sound jurisprudence to create incentives for plaintiffs to get rid of allegedly defective products, so that they can’t be tested, and then to proceed on a circumstantial theory that testing could have disproved.  Where, as in DiCosolo, the plaintiff (or perhaps the decedent, we don't think that matters) is responsible (whether intentionally or not) for the product being unavailable, the plaintiff should not be permitted to take advantage of his/her own actions and pursue a purely circumstantial case.  Such theories should only be allowed where the product's absence was caused by a force of nature (such as destruction by fire) or a third party (such as a hospital throwing away something that broke), not by the plaintiff’s/decedent's own conduct.  A party should never profit from his/her own destruction of evidence.

So this ooey gooey is off to to a most messy start.  Now for some cottage cheese.

There really wasn’t any product “malfunction.”  There was no collapsing ladder, nor dead mouse in a soda bottle, nor exploding microwave – just a patch that may or may not have oozed too much of a drug.  Doesn’t matter, held the court.  Even though the plaintiff did “not address[] defendants’ argument,” 2011 WL 2640801, at *5, the court made up a response, relying upon a case where chemotherapy drugs escaped from an IV and ate a hole in the plaintiff’s chest.  Id. at *5-6 (citing Weedon v. Pfizer, Inc., 773 N.E.2d 720 (Ill. App. 2002)).

Well, drugs aren’t supposed to eat holes in peoples’ chests, and IV tubing exists to prevent that.  We look at Weedon as the medical equivalent of the exploding microwave.  If in DiCosolo the missing patch had left a huge burn on the spot where it had been, then Weedon would have been a proper analogy.  The patch, however, didn’t do anything of the sort. It just sat there – and a patient who had been using multiple central-nervous-system depressants died of respiratory failure.  The court conceded that the patch’s “operation” or “performance” is not observable, 2011 WL 2640801, at *6, but failed to draw the obvious conclusion that in such circumstances a malfunction-based theory simply shouldn't be available.  Instead, it pounded an $18 million square peg into a round hole.

The court also mentioned that the coroner’s blood work showed excessive amounts of fentamyl.  2011 WL 2640801, at *8.  That was other evidence of an unobservable malfunction, it held.

That gets us to the ketchup.

Not only wasn’t there a product malfunction in any meaningful sense of the term, there wasn’t proper circumstantial proof either.  Other secondary causes weren’t ruled out by the evidence.  As we alluded to earlier, the coroner failed to test for all the other CNS-depressing drugs that the decedent had been taking.  We didn’t mention why – the plaintiff omitted several of them from the “first call list” of the decedent's medications that he gave the coroner.  2011 WL 2640801, at *9.  The coroner thus didn't know what to test for.  Once again, the plaintiff was responsible for the absence of critical evidence.

Not only that, “plaintiff threw the remaining pills out within the first few months after his wife died.”  Id.

Didn’t matter.  The trial court “exclude[d] all evidence or argument regarding drugs that were not found in [decedent’s] system,” 2011 WL 2640801, at *9 – that is, the drugs that the coroner didn’t test for, mostly due to the plaintiff’s withholding of information.  The DiCosolo court affirmed, saying, in effect, “so what?”

Although admission of evidence related to [other drugs] may have rendered a matter in issue more or less probable, i.e. . . . whether a synergistic combination of CNS depressants, including [that drug], was a cause of [decedent’] death, we do not believe that it would have affected the outcome of the trial.  There was overwhelming evidence regarding the defective . . . skin patch causing [decedent’s] death.

Id. at *11.

Overwhelming evidence?

That’s just pure [something Officer Don wouldn’t be allowed to use in ooey gooey].  The court had just gotten through allowing plaintiff to get away with:  (1) throwing away the product, and (2) proceeding on a malfunction theory in the absence of any obvious malfunction.  Now, all of a sudden this dog of a case becomes “overwhelming evidence”?

Not even the court could have believed what it was writing – or else it wouldn’t have gone on to criticize the defendant for not itself demanding additional “post-mortem” blood tests.  2011 WL 2640801, at *11.  Even putting aside the obvious question of when (Should defendant have demanded exhumation of the corpse?  We’re sure the jury would have loved that.), the defendant had no such obligation.

Under the Illinois malfunction theory, plaintiff retained the burden of proof.  2011 WL 2640801, at *3 (“[a] plaintiff in a product liability case, must prove . . . that in the absence of abnormal use or reasonable secondary causes the product failed to perform in the manner reasonably to be expected”) (citation and quotation marks omitted).

So it wasn’t the defendant’s obligation to prove the secondary cause – that is, the other equally deadly drugs plaintiff had been using – it was the plaintiff’s burden to establish its absence.  Exclusion of the other drugs was plainly prejudicial, since it allowed plaintiff to give the jury a false impression that alternative causes, strongly suggested by the excluded evidence, didn’t exist.

How about some Bosco?

The court permitted the plaintiff to treat the recall – involving a “small percentage” of the recalled product, and definitely not the only patch that could be tested – as evidence of a defect.  Illinois law forbade using a recall as evidence of defect where the problem causing the recall only “might exist in some” of the recalled products.  2011 WL 2640801, at *12 (quoting Millette v. Radosta, 404 N.E.2d 823, 835 (Ill. App. 1980)).

Then throw in some warm jello.

The court allowed evidence of fraud on the FDA, and then allowed an “expert” (without any FDA qualifications whatever) to testify that the defendant had committed a “federal offense.”  2011 WL 2640801, at *14.  That’s wrong for so many reasons that we’ll just summarize the ones occurring to us:  (1) the email supposedly referring to "deceiv[ing]" the FDA had nothing to do with this product or this recall; (2) evidence suggesting fraud on the FDA is preempted under Buckman (something we've discussed here); (3) Illinois law does not allow plaintiffs to assert FDCA violations as a basis of state-law liability, Martin v. Ortho Pharmaceutical Corp., 661 N.E.2d 352, 356-57 (Ill. 1996); (4) the email was excludable under the Dead Man’s Act because the author (an employee of the defendant) was dead; (5) the expert was completely unqualified to offer such opinions; (6) the whole subject, having nothing to do with the product, was far more prejudicial than probative.

And let’s top off this unsavory concoction with some turpentine, or linseed oil, or something else smelly and flammable.

The court “disapproved” of the inflammatory closing argument “in which plaintiff's counsel repeatedly accused defendants of ‘killing’ [decedent] and ‘corporate greed run amok,’ [and] also made a comment that defendants presented a ‘frivolous defense’.”  2011 WL 2640801, at *15-16.  Why was this OK?  We can’t even tell.  The opinion just says no abuse of discretion, no new trial.  Id. at *16.

If not from the jury being inflamed, we’d like to know what possibly could be the basis of an $18 million verdict for a middle-aged (38), probably unemployed (the decedent had disabling pain, and no job was mentioned in the opinion), multiple drug user who died (no medical expenses) in her sleep (no pain and suffering).  That’s the kind of number more likely produced by death in a fiery automobile accident, or else by a large lost income claim.

But once again, we come away from DiCosolo with Officer Don’s expression on our faces.  The opinion's entire factual discussion of the remittitur issue consists of two sentences:

We cannot say that the verdict in this case falls outside the range of fair and reasonable compensation or is so large it shocks the judicial conscience.  We therefore deny defendants’ request for a remittitur.

2011 WL 2640801, at *17.

OOEE GOOEY!

Seventh Circuit Shoves the S.D.Ill. Back Into Line On Removal

We've remarked before about the odd, detrimental position that the Southern District of Illinois has taken towards removal, fraudulent joinder, and diversity jurisdiction in cases claiming that pharmacies should be liable for prescription drugs just like any other intermediate product seller.  The Illinois Supreme Court, as a substantive matter, has rejected pharmacy liability repeatedly as a consequence of the learned intermediary rule.  See Happel v. Wal-Mart Stores, Inc., 766 N.E.2d 1118, 1127 (Ill. 2002); Frye v. Medicare-Glaser Corp., 605 N.E.2d 557, 559-61 (Ill. 1992); Kirk v. Michael Reese Hospital & Medical Center, 513 N.E.2d 387, 392 (Ill. 1987).  Yet plaintiffs in the South Illinois "hellhole" counties, Madison, St. Clair, etc., kept alleging pharmacy liability, and numerous Southern District of Illinois decisions let them get away with it - remanding the cases based upon a combination of a "presumption" in favor of remand, and something called the "common defense" exception.  Funny, but that didn't stop federal district courts in other parts of the country from finding fraudulent joinder where (as in most states) pharmacy liability was similarly barred under the relevant state's law.

Well, we think that's come to an end.  As we also discussed before, with the Yazmin/Yaz litigation, the S.D. Ill. got its own MDL.  Where a judge stands apparently depends somewhat on where s/he sits, and in that litigation, the court broke ranks and - rather than tolerate a large number of similar state-court suits trenching on the MDL - held that, contrary to a lot of other S.D. Ill. precedent - pharmacy liability claims constituted fraudlent joinder, and denied remand.

MDLs are a little different from individual litigation in other ways, too.  For one thing, plaintiffs lawyers have lots and lots of "clients" and are not adverse to using them as cannon fodder when they want to make a legal point - or at least try to.  That's what happened in Yazmin/Yaz.  Counsel for one of the non-remanded plaintiffs, named Walton, decided to risk tanking the client's claim in order to appeal the failure to remand.  So poor Ms. Walton defaulted on discovery obligations, the MDL court dismissed her case with prejudice as a sanction, and the plaintiff's lawyer challenged the dismissal for lack of federal subject matter litigation.

Yeah, a plaintiff can do that.

But the plaintiff had better be right, because if s/he loses the appeal - no more case.

That's usually a deterrent, except in MDL litigation, where there are plenty of plaintiffs available to be sacrificed, Grindelwald-style, to the "greater good."

Well, we're happy to report that, today, plaintiff Walton lost - big time.  See Walton v. Bayer Corp., slip op. (7th Cir. May 23, 2011).  And in losing, Walton should bring the Southern District of Illinois' removal precedent back into line with the rest of the country's (the S.D. Ill. is bound by 7th Circuit precedent).

Here's what the Seventh Circuit had to say in Walton:

(1) Yeah, dismissal of a case as a sanction is appealable, and can be challenged for lack of subject matter jurisdiction.  Slip op. at 3-4.  The plaintiff (or more to the point, counsel) can "wager[] her entire claim on being proved right about jurisdiction."  Id. at 4.

(2) Don't make us laugh; of course a case about strokes and possible strokes meets the $75,000 jurisdictional minimum for diversity jurisdiction.  Otherwise "her suit [would] not [be] worth the expense of litigating it."  Slip op. at 4-5.

(3) The plaintiff's claim of a technical violation of one of the minor requirements of the rules for removal (not attaching an as-served copy of the summons), was trivial.  The summons were added promptly and there was not even a whiff of prejudice.  Slip op. at 5-6.  "[T]otally inconsequential" defects in removal papers don't deprive federal courts of jurisdiction.  Id. at 6.

After having sacrificed credibility with the court (never a good thing with Judge Posner) by making dumb arguments, the plaintiff went on to her significant argument - and lost that, as well.

(4) In light of the learned intermediary doctrine, as applied to pharmacists by the Illinois Supreme Court, the claims against the pharmacist defendant in Walton were "utterly groundless."  Slip op. at 7-8.

Pharmacies . . . can’t be expected to warn their customers of the possible defects and dangers of the prescription drugs they sell.  It would be senseless, especially given drug regulation by the Food and Drug Administration and the extensive tort liability of drug manufacturers, to make pharmacies liable in tort for the consequences of failing to investigate the safety of thousands of drugs.

Id. at 8-9.  It doesn't matter how Illinois gets to that point, since what's "important is that in 48 states including Illinois" a pharmacy cannot be liable where there are risk warnings directed to physicians.  Id. at 10.

(5) The "common defense" exception to fraudulent joinder doesn't apply to the pharmacy liability claims, because plaintiffs also allege (as all plaintiffs do) that the manufacturer defendants failed to warn/concealed the risk from the medical community.  Since pharmacists are within the group allegedly targeted by the concealment, their position with respect to the learned intermediary rule/warning claims isn't in fact the same as the other defendants.  With the defendants in differing positions, the "common defense" exception doesn't apply.

[A]pplying the common-defense exception to this case is barred by the plaintiff’s allegation that the [manufacturer] defendants concealed the existence of [the drug's side effects. . . .  [The pharmacy] was no doubt one of the entities from which the [manufacturer] defendants (if the charge of concealment against them has any merit) concealed the side effects.

Slip op. at 11.  Plaintiff must be held to her allegations, and would prevented by judicial estoppel from arguing "no, I didn't mean it about concealment" later on.  Id. 12-15.

(6) Bye-bye hellholes; diversity jurisdiction exists.

Walton should kill off the unduly constricted reading of fraudulent joinder that courts in the Southern District of Illinois were using to remand cases where jurisdiction exists.  Might it do more?  Anybody representing of the unfortunates in a case that was remanded to a hellhole improperly should take a look.  Most decisions aren't retroactive, so it seems to us that there's a decent argument that Walton created a new ground for removal by overturning existing Southern District precedent.  That should help if the case is less than a year old, and possibly more (we haven't looked into whether grounds for removal might exist in older cases).

Anyway, thanks, Judge Posner, for shoving the Southern District of Illinois back into line on fraudulent joinder - and Sherry Knutson, of Sidley Austin for tipping us off to the Walton opinion.