The Artist and a Daubert Opinion

So The Artist won.  Some of us (maybe only one of us) didn’t even know it was a silent movie.  Imagine going to that movie without knowing it was silent.  That’s failure to warn.  At least when Mel Brooks made Silent Movie you knew what you were getting.  And in his movie the French guy spoke. 

Alright, on to legal stuff.  We found a number of interesting Daubert decisions in the court’s opinion in Hershberger v. Ethicon Endo-Surgery, Inc., No. 2:10-cv-00837, 2012 U.S. Dist. LEXIS 18799 (S.D.W. Va. Feb. 15, 2012), so we thought we’d discuss a few of them here.  This is a device case.  The plaintiff claimed that a stapler used during her colostomy reversal procedure was defectively manufactured because it didn’t contain the staples that it was supposed to contain, requiring a second stapling procedure.  Id. at *2-4.  The defense, on other hand, argued that the stapler did in fact contain staples but one of the surgeons prematurely and negligently discharged the stapler.  Id.  As trial approached, the parties filed a number of motions in limine to exclude testimony from experts and treating physicians related in one way or the other to this issue. 

The attending surgeon sought to testify that no staple was discharged at all during the first firing of the stapler – supporting plaintiff’s claim that it was defective – but rather a staple found in the plaintiff instead got there during a second stapling.  Id. at *16-19.  The defense’s response was based on a simple and seemingly effective argument.  The attending physician had already admitted that he didn’t see any staples inside the plaintiff during the procedures so he could not testify on when it got there.  The court allowed the testimony, however, ruling that the doctor’s opinion was “a product of [the doctor’s] experience and observations in the role of treating physician.”  Id. at *18.  We aren’t too surprised by this.  This ruling falls into a category that we’ve often seen at trial, whether appropriate or not: treating doctors get to testify about an awful lot of things as long as the testimony can be linked to their treatment of the plaintiff.

But in this case the plaintiffs wanted it all.  They not only wanted to be allowed to use the treating surgeon’s testimony to support their claim but also to exclude the defendant from offering testimony from an expert disagreeing with the conclusions and reports of the treating surgeons.  No go, said the Court:

In formulating their opinions, expert witnesses may be called upon to sift through conflicting testimony and data to arrive at an opinion of the most likely course of events. Such determinations of judgment, provided they are well-reasoned and explained, do not render expert testimony inadmissible. . . . [The defense expert’s] choice to credit some facts contained in the treating physicians' reports and testimony but not other facts is an issue for cross-examination, not a threshold question of admissibility.

Id. at *11.  In fact, the court went on to say that the defense expert’s choices on which testimony and data to credit and which to discredit appeared “well founded.”  Id. at *11 n.5.

Maybe the most interesting decision contained in this opinion, however, was on the defense’s motion to exclude a plaintiff’s expert from testifying that “based upon the lack of staples in the stapler [reported by the treating physicians], the stapler was defective.”  Id. at *22.  Defendant’s argument to exclude this opinion was simple and one we like: this is no expert opinion at all.  The testimony would simply credit or parrot the treating surgeons’ testimony on the absence of staples and use that to then give an opinion that a stapler without staples is defective, which calls upon no specialized expertise.  Id. at *23.  In fact, the plaintiffs inadvertently conceded this point.  They defended this opinion by arguing that it was “a matter of common sense.”  Id. at *23.  Exactly.  Jurors have common sense and no need for an expert to help them with it. 

As we have often had to argue at trial, expert opinion is not meant to parrot or cheerlead the testimony of others, and it isn’t needed to tell jurors things that they can figure out themselves.  And this court got it right.  It ordered the expert to remain silent.  Id. at *24.  That’s the kind of silent movie we like.

Finding a Happy Place

            It’s August – days are getting shorter, pencils and notebooks have replaced beach balls and suntan lotion in the stores, football is encroaching on baseball.  Now, think of where you would like to be as the twilight of summer approaches.  At a barbecue with fresh Jersey corn and tomatoes?  Walking along the beach in the morning and the boardwalk at night?  Reading a good book by the side of the pool?  Whatever your first choice lazy, late summer spot is – we are sure it is a happy place. 

            Like us, our clients want to be in happy places too.  Places with short statutes of limitations, no heeding presumption – and certainly places that recognize the learned intermediary doctrine.  So, it is no surprise that drug and device manufacturers want to be in the West Virginia courts about as much as Mike Vick wants to face Clay Matthews and the Packers defense in Green Bay in the playoffs (keeping with our football theme from yesterday).  And, with decisions like Woodcock v. Mylan, Inc., 661 F. Supp.2d 602 (S.D.W. Va. 2009) and Vitatoe v. Mylan Pharmaceuticals, Inc., 696 F.Supp.2d 599 (N.D.W. Va. 2010) – holding that the learned intermediary doctrine, as it violates West Virginia public policy, cannot be applied in a diversity case, regardless of what state’s substantive law controls – West Virginia federal court was only marginally a more desirable location than state court. 

Fortunately, earlier this year, and as reported on here, the West Virginia legislature enacted a statute declaring the public policy of West Virginia to be that the applicability of the learned intermediary rule is to be governed by the product liability law of the place of injury (“lex loci delicti”) -- typically the residence of the plaintiff at the time s/he took the drug.  W. Va. Code § 55-8-16(a).  Great news – but only for cases filed on or after July 1, 2011.  Id. at §16(b). 

So, what should a pharmaceutical defendant sued in federal court in West Virginia prior to July 11, 2011 by a plaintiff who resides in another state do – move for a § 1404(a) transfer.   That is precisely what the defendant in Locklear v. Mylan Inc., 2011 U.S. Dist. LEXIS 84398 (N.D. W.Va. Aug. 1, 2011) did – having been the defendant in the horrible Woodcock  and Vitatoe decisions, Mylan was certainly looking to avoid a trifecta.  If this didn’t work, who knows?  Poor Mylan might want to consider moving out of West Virginia.

Plaintiff Locklear sued Mylan for the death of her husband alleging an accidental fatal drug overdose after use of defendant’s transdermal fentanyl patch.  Locklear, 2011 U.S. Dist. LEXIS 84398, *2-3.  There was no dispute that the case could have been filed in the Eastern District of North Carolina, where the decedent resided until his death, id. at *3, and the court agreed that that was the better venue:

Overall, the interest of justice requires that this case be heard in a court with better access to relevant evidence and witnesses, where non-party witnesses will be less inconvenienced, and where the local citizens have a stronger interest in the case. These considerations are substantial and overcome the presumptively proper venue chosen by Locklear.

Id. at *17. 

A note to our clients -- the court appeared particularly swayed by the defendant’s willingness to make its employee witness available in North Carolina.  With the focus off any burden to party witnesses, the court concentrated on non-party witnesses – like plaintiff’s treating physicians in North Carolina:  “These individuals with no stake in this litigation should not be asked to incur the inconvenience of traveling to West Virginia, even if voluntarily.”  Id. at *9. 

Without burdened witnesses, the plaintiff made one last attempt to tie this otherwise North Carolina-based case to West Virginia by arguing that the court was required to apply West Virginia learned intermediary law regardless of whether the rest of the case was governed by North Carolina law – relying, of course, on Woodcock and Vitatoe.  Since North Carolina has legislatively enacted the learned intermediary rule for drugs and medical devices,  N.C. Gen. Stat. §99B-5(c), there is a significant difference between the law of the transferor and transferee courts.  But, does it matter?

In finding that the difference between North Carolina and West Virginia law didn’t impact the decision to grant the motion to transfer – and therefore, deciding not to resolve the issue – the court held:

On transfer, however, a party retains the benefits of the laws of the forum she initially selected.  That is, the case should remain as it was in all respects but location.

Locklear, at *12 (citations omitted).  “A change of venue under § 1404(a) generally should be, with respect to state law, but a change of courtrooms.”  Id. at *14 (citations omitted). 

            So, did defendant win the battle but lose the war?  If plaintiff is entitled to application of the law of West Virginia regardless of location – then is the North Carolina federal court, in a case originally filed in West Virginia before July 11, 2011 – bound by Woodcock and Vitatoe?  In other words, is West Virginia’s supposed “policy” against the learned intermediary rule stronger than North Carolina’s contrary “policy” in favor of the rule?  North Carolina, unlike West Virginia, backs up its “policy” with a statute.  We certainly argue that the answer is no, that the North Carolina federal courts are at least as bound to respect their home state’s policies as is a West Virginia court, but we’ll have to wait to see how that court handles the choice of law analysis.  All in all, North Carolina is still a happier place to spend the rest of the summer, so we’ll kick off our shoes and splash in the ocean while we still can.

West Virginia: No Country for Good Decisions

Last week we were at DRI-Chicago, which had some terrific panels. We especially liked the presentations on the strategies behind the VIOXX litigation and on how to dismantle a plaintiff's omnibus expert. On the flight back we took a gander at the airline magazine, because one can read only so many advance sheets and BNA alerts. There was an article about Ken Jennings's new book. Jennings was the uber-Jeopardy champion, magnificent even when he lost to Watson. Jennings has written a book about geography that contains lots of interesting observations. Among other things, Jennings writes that he always wanted to go to Weirton, West Virginia, because it has the odd distinction of touching two states other than the state it's in. That's a fascinating fact, though not so fascinating as the idea of somebody wanting to go to West Virginia. ("One Big Family -- Really.") We had a college roommate from Weirton who had that really cool, Chuck Yeager accent. Nice guy. We loved the way he drew out the state slogan: "Wwwwwiiiild and wwwwunderful West Virginia."


Since immersing ourselves in defense-oriented litigation, we've discovered West Virginia to be wild and not-so-wonderful. We won't repeat the parade of indignities or the Judicial Hellhole riff. Let's leave it at this: while there are some good state court judges there, they are vastly outnumbered by purveyors of home-cooking and crazy rulings paving the way for verdicts that defy reason and rattle stock prices. So when your client is sued in West Virginia state court, one of the first things to consider is removal.


That's what happened in Hartman v. Caraco Pharmaceutical Laboratories, Ltd., 2011 U.S. Dist LEXIS 46924 (S.D. W. Va. April 29, 2011). The plaintiff filed a complaint in West Virginia state court, alleging that she was injured in a car accident after an episode of sleep-driving. She had taken Zolpidem, a generic substitute for Ambien. The plaintiff was a West Virginia resident. She sued the manufacturer, a Michigan resident. She also sued the pharmacy, a fellow West Virginia resident. She claimed that the pharmacy failed to warn her adequately of the sleep-driving danger. Predictably, the manufacturer removed the case to federal court, arguing that the pharmacy had been fraudulently joined. Just as predictably, the plaintiff filed for remand.


Now we all know that outcomes are often determined by presumptions and burdens. So we also know that things are headed South (or at least to West Virginia, which is worse) when the federal court deciding the remand motion drones on about the "heavy burden" facing a defendant removing a case for fraudulent joinder. The court says that the removing party must show there is "no possibility" that the plaintiff could establish a cause of action against the in-state defendant, that "[a]ny shades of gray are resolved in favor of remand," and that a plaintiff "need only demonstrate a 'glimmer of hope' in order to have his claims remanded." Hartman, 2011 U.S. Dist. LEXIS 46924, *4-5.


Okay, we get it. And we get where this is going. There's a lot of language out there about the presumption in favor of remand, but this judge selected the worst of the worst. It's kind of like that scene in No Country for Old Men, where the victim says to the killer, "You don't have to do this." Javier Bardem smirks and says, "People always say that" and then flips a coin. Some bad things can't be reasoned with.


Here, there were plenty of good reasons to see the claims against the pharmacy as bogus. First, there is a West Virginia statute that sure sounds like pharmacies can't be on the hook for product liability claims. Section 30-5-12(a) provides as follows: “All persons, whether licensed pharmacists or not, shall be responsible for the quality of all drugs, chemicals and medicines they may sell or dispense, with the exception of those sold in or dispensed unchanged from the original retail package of the manufacturer, in which event the manufacturer shall be responsible.” The federal court acknowledged that the majority interpretation of section 30-5-12(a) shields pharmacists from failure-to-warn claims. An earlier federal case -- and not much earlier (July 2010) -- followed that majority approach and deemed a pharmacy fraudulently joined.

But the Hartman federal court looked to the minority approach in older (2003 and 2005) decisions where section 30-5-12(a) was held to protect pharmacies only from claims "based upon the quality of the drug," and not against failure-to-warn claims. Id. at *7-8. Those cases (both federal, by the way) held that because the West Virginia legislature had not expressly mentioned failure-to-warn claims in section 30-5-12(a), such claims were not covered.


Geeze. Maybe the language in the statute was general because it was meant to apply generally and across the board. Maybe there's a reason why this approach is the minority approach, and an old one at that. And yet the federal court in Hartman seized upon such old and unsound law to supply the "glimmer of hope" that compelled remand.


But wait, there's more. Remember how the Hartman court relied on earlier federal cases to narrow the immunity of section 30-5-12(a)? One of those cases still held that the pharmacy had been fraudulently removed because "the learned intermediary doctrine applies to discharge any duty of the pharmacy to warn its customer." Id. at * 9, quoting Ashworth v. Albers Medical, Inc., 395 F. Supp. 2d 395, 407-08 (S.D.W. Va. 2005). Why doesn't that work here? You know the answer, don't you? It's the gruesome Karl case where, according to Hartman, "the supreme court of appeals mentioned and parted company with the substantial majority of other state courts that had addressed the issue as well as with Ashworth and other decisions predicting West Virginia would adopt the learned intermediary doctrine generally." Hartman, 2011 U.S. Dist. LEXIS 46924 at *10. Right. It's all coming back to us now. Like a sandwich with spoiled mayonnaise.


Of course, "the Karl decision did not involve a pharmacy." Id. at * 10. Hartman did. And, of course, the Karl "majority opinion appears to have been influenced heavily by the 'current state of the prescription drug industry and physician-patient relationships' impacted by direct marketing of drugs to consumers through mass media advertising." Id. at *11, quoting Johnson & Johnson Corp. v. Karl, 220 W. Va. 463, 465 (2007). Hartman, as far as we can tell, involved no such advertising. So, we don't have to do this, do we? There's still a chance to be reasonable ... isn't there?


Yes and no. The Hartman court basically interepreted the fraudulent joinder standard to assume that Karl would be extended even to cases where there was no direct-to-consumer advertising. This ruling is parallel to the court's assumption that the older, less sensible interpretation of section 30-5-12(a) would prevail. Does the fraudulent joinder standard really require a federal court to assume that state courts would adopt the dumbest, most plaintiff-friendly approach possible?


Well, we are talking about West Virginia.

West Virginia Legislature Clarifies Public Policy

We were quite concerned a couple of years back when, in the wake of the West Virginia Supreme Court's horrible decision in State ex rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899 (W. Va. 2007), rejecting the learned intermediary rule, a federal district court in that state undertook to apply West Virginia law to out-of-state plaintiffs in Woodcock v. Mylan, Inc., 661 F. Supp.2d 602 (S.D.W. Va. 2009) - claiming that Karl established "public policy" and therefore mandated use of forum state law no matter how unrelated the suit.  See our post, here.  For that, we awarded Woodcock a place in our bottom ten worst decisions of 2009.

Some deterrent that was.

Last year another West Virginia federal court did the same thing, in Vitatoe v. Mylan Pharmaceuticals, Inc., 696 F.Supp.2d 599 (N.D.W. Va. 2010).

Poor Mylan - it's the only major drug company based in West Virginia.  Our post on the subject was entitled "Why Drug Companies Should Beware Of Doing Business In West Virginia."  Our advice at least attracted some attention in West Virginia.

Well, we're happy to report - or, more accurately have it reported to us by Phil Combs of Allen, Guthrie & Thomas (thanks, Phil) - that the West Virginia legislature has stepped in to stop this choice-of-law foolishness.

Here's a copy of the final, enrolled bill, passed March 12, which declares the public policy of West Virginia to be that the applicability of the learned intermediary rule is to be decided on the basis of the residence of the plaintiff at the time s/he took the drug:

§55-8-16. Choice of Law in Pharmaceutical Product Liability Actions.


(a) It is public policy of this state that, in determining the law applicable to a product liability claim brought by a nonresident of this state against the manufacturer or distributor of a prescription drug for failure to warn, the duty to warn shall be governed solely by the product liability law of the place of injury (“lex loci delicti”).

Mylan (and the rest of us) can rest a little easier, at least after the effective date of July 1, 2011.