Thursday, August 30, 2012

The Latest From Aredia/Zometa

Yeah, we know that Joe Hollingsworth − among his many other talents − likes to publicize his wins (who doesn't, we plead guilty).  But that’s okay.  When he sends us stuff from the Aredia/Zometa wars that’s worth publicizing, we’ll use it; otherwise, we blog about something else.  It just so happens that the latest items we’ve been graced with are worth knowing about.


First, there’s what looks like the end of the line for the Hogan case.  We’ve been following that one for several years.  Hogan was particularly notable because it involved a Rhode Island plaintiff, and there’s just not that much Rhode Island law on anything.

Our prior Hogan-related posts:

First, the defendant lost a summary judgment motion in the MDL, In re Aredia & Zometa Products Liability Litigation, 2009 WL 2513555 (M.D. Tenn. Aug. 13, 2009), as we mentioned here, in the context of keeping score.  At that point, we thought that the Zyprexa defense folks were having better luck with their summary judgment motions than the A-Z folks.

Then things got better.  The next time we looked in, Hogan had evidently been remanded from the MDL, because a court in New York (the forum choices in A/Z often leave us scratching out heads) took a pro-defense position on subsequent remedial measures − finding them to be “procedural” and thus applying the federal rules (rather than a peculiarly pro-plaintiff Rhode Island state rule).  Hogan v. Novartis Pharmaceuticals Corp., 2011 WL 1336566 (E.D.N.Y. April 6, 2011).

We checked back in not much later for a truly excellent Daubert ruling − excluding the notorious Dr. Parisian and another plaintiff’s expert.  Hogan v. Novartis Pharmaceuticals Corp., 2011 WL 1533467 (E.D.N.Y. April 24, 2011).  Unfortunately the court also dodged a prediction of whether Rhode Island would adopt the learned intermediary rule.  Id. at *9.  That meant Hogan only received an honorable mention in our 2011 top ten list.

So fortified, the defense then went out and won the trial.  We blogged on that, too, even though verdicts don't usually come with much to blog about, because at trial the court finally predicted − a first we believe − that Rhode Island would adopt the learned intermediary rule.  Rhode Island had previously been the only state in the country with no learned intermediary rule precedent at all.  We called it “The Closing of the Learned Intermediary Frontier.”

Well, now the defense has won the inevitable appeal in Hogan, too.  Here’s a copy of the opinion.  Did the plaintiff appeal the subsequent remedial measure ruling?  Doesn’t look like it.  Did the plaintiff appeal exclusion of Parisian?  Again, it’s not even mentioned in the opinion.  Finally, did the plaintiff appeal on the learned intermediary rule?  Nope.

With all these interesting legal issues in the Hogan case, what went up?

The only issue the Second Circuit discussed was whether the plaintiff’s screw up in failing to make timely arrangements to obtain the live testimony of one of the treaters.  Hogan, slip op. at 3-4.  After all that time and effort, what we’re left with is a discretionary procedural ruling.

Bravo Foxtrot Delta.

Thus endeth the Hogan litigation, with a whimper not a bang.

We get more bang for our blogging buck with the other recent A-Z opinion, Patterson v. Novartis, Inc., C.A. No. 11-402 ML, slip op. (D.R.I. Aug. 28, 2012).  First of all, Patterson was a statute of limitations dismissal.  We don’t usually cover those, because the facts are very case-specific, and the law is very state-specific.

But we have exceptions. One of those exceptions is the issue of cross-jurisdictional class action tolling of the statute of limitations.  We feel strongly enough about that ill-conceived notion that we devote one of our scorecards to it.

That issue came up in Patterson − but first, the case's rather tortured procedural history:

Plaintiffs initially pursued a claim against Defendant and the generic pharmaceutical drug manufacturers in the United States District Court for the District of Columbia on March 5, 2009.  On November 9, 2009, the claims against Novartis were separated from the claims against the generic drug manufacturers by the United States Judicial Panel on Multidistrict Litigation.  The claims against Aredia were transferred to the [Aredia/Zometa MDL]. . . .  Novartis moved to dismiss Plaintiffs’ claims against it pursuant to Fed. R. Civ. P. 12(c) on the ground that the use of “and/or” to describe the drug manufacturer was insufficient to state a claim for relief against Novartis.  Over Plaintiffs’ Objection, the [MDL] Court . . . granted the Motion and dismissed Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(c).  Plaintiffs appealed . . . and their appeal was denied. Shortly thereafter, Plaintiffs refiled the case in this District.

Patterson, slip op. at 2-3.

Basically the Patterson plaintiff failed to identify the defendant as the manufacturer, instead using weasel words “and/or” to muddy up his complaint.  Although plaintiffs used to be able to get away with that kind of thing, TwIqbal precludes that kind of vague language – as we discussed in this post, back in 2009, specifically about "and/or".

Only after playing out the string in the MDL did the plaintiff in Patterson bother with filing a new complaint.  By that time the statute of limitations had run.  It turns out that, despite filing the original complaint in DC, litigating it in Tennessee, and ultimately filing a second action in Rhode Island, plaintiff was really a Massachusetts resident.  Again, we have no idea why the plaintiff made some of the tactical choices he did − and apparently neither did the court.  Patterson, slip op. at 11.

The plaintiff offered four arguments why he should be allowed to skate under a three-year statute of limitations despite filing the complaint six years after the injury.  We don’t care about two of them:  the discovery rule (too fact specific), and equitable tolling (too state specific).

We care a little about the Massachusetts saving statute argument, but only because that demonstrates that a TwIqbal dismissal is on the merits, and not merely a “matter of form.”  “The case law is clear that a dismissal under Rule 12 is a final decision on the merits.”  Patterson, slip op. at 9.  A dismissal on the merits cannot be revived by a saving statute.

We care a lot about the cross-jurisdictional class action tolling issue.  The court (sitting in Rhode Island) refused to become the first court anywhere to predict that Massachusetts would allow an out of state class action (here, in the MDL court in Tennessee) toll its statute of limitations:

Plaintiffs’ cross-jurisdictional class-action tolling argument asks this Court to engage in an exercise of legal gymnastics to save Plaintiffs’ Complaint.  In particular, Plaintiffs argue that the filing of an Aredia class action in Tennessee tolled the statute of limitations nationally until such action was dismissed on November 14, 2007.  The issue of such tolling is controversial, and Plaintiffs have not identified any Massachusetts cases adopting the theory.  Moreover, the case law indicates that “few states” adopt such tolling for class actions filed in another jurisdiction and that “several federal courts have declined to import the doctrine into state law where it did not previously exist.”  I decline to apply cross-jurisdictional class action tolling in the present case, since Plaintiffs have not shown that Massachusetts has adopted tolling of this nature, nor that it would.  It is not this Court’s role sitting in diversity to create new state law in Massachusetts; thus I reject the arguments advanced by Plaintiffs on these grounds.

Patterson, slip op. at 10-11 (citations omitted).

Bingo!  Not only does Patterson go onto our cross-jurisdictional tolling scorecard as the first Massachusetts decision on the issue, but it warms our blogging hearts to see a federal court refusing to make wildly expansive predictions of state tort law under the Erie doctrine (another proposition we’ve advocated here at DDLaw since the beginning).

Thus, we follow Aredia/Zometa not because Joe makes it easy − although that helps − but because (like Bone Screw before it), that litigation raises a host of interesting issues.  We wish the defense well as it tackles the difficult task (again, like Bone Screw) of “winning” a mass tort after remand from the MDL.

1 comment:

tadalafil said...

First, there's what looks like the end of the line for the Hogan case. We've been following that one for several years. Hogan was particularly notable because it involved a Rhode Island plaintiff, and there's just not that much Rhode Island law on anything.