Psychotic Rage: Drug Side-Effect or Detoxification Byproduct?

Recently, the estates of Pennsylvania couple, Sean and Natalie Wain, filed a product liability lawsuit against Pfizer in the United States District Court for the Western District of Pennsylvania. The complaint alleged that the pharmaceutical company’s smoking cessation drug, Chantix, caused Wain to experience psychotic rage, shoot and kill his wife, and commit suicide in May 2009. Allegedly, Wain had been taking the drug for one or two weeks prior to the incident.

This action is only the most recent in a long line of Chantix-related claims. Over 100 lawsuits have been filed against Pfizer alleging that plaintiffs or their decedents committed suicide, suffered severe injury attempting to commit suicide, or exhibited unusual behavior after taking Chantix. Besides the consumption of Chantix, there is only one other apparent similarity among the plaintiffs – they were all deprived of cigarettes.

Being deprived of an addiction is difficult even without the alleged side effects of medication. We here at Abnormal Use know this all too well. No phone messages are checked or emails are read at the office until we get our first taste of coffee in the morning. On those rare occasions when that fresh nectar is not immediately available upon our arrival, we get a little angry. Our indignation only escalates as we await the percolation of our precious drink to relieve us of the perils of our temporary detoxification. While we have never reached the level of “psychotic rage,” we have also never been deprived of coffee for two weeks.

According to a study by the Institute of Safe Medication Practices, Chantix was shown to create violent behavior when users first began taking the drug, often before they had completely stopped smoking. The study also noted that the violent behavior ceased for 93 percent of the participants after they quit taking Chantix.

While this study may appear to be damning for Pfizer, a closer look indicates that it may not be as conclusive as the plaintiffs desire. First, the study was a mere compilation of Chantix adverse event reports submitted to the FDA. By limiting itself to the 78 reports submitted to the FDA and not examining the thousands of other Chantix users, the study lacks the ability to paint a global picture of the drug’s side effects. Second, this was not a controlled research study. The Institute did not gather a representative sample of individuals who wished to quit smoking. They did not study the individuals prior to the consumption of the drug. They did not administer any placebos. This study is far from what one would expect of viable scientific research.Without a controlled environment, the study lacked the ability to factor in third variables. By examining only cases reported to the FDA, at best, the study reveals correlation – not causation. With these limititations, suggesting that it is Chantix, not the process of quitting smoking, which is causing these side effects is premature.

We do not mean to suggest that these plaintiffs did not display violent behavior after taking Chantix. Nor do we suggest that quitting smoking always leads to psychotic rage. Rather, we suggest that we withhold judgment of Pfizer and Chantix before making sure that no other factors are at play. Of course, if making rash conclusions is your addiction, we know how withholding judgment may make you feel.

The New Abnormal Use

We here at Abnormal Use are now officially ready for our close up. As you can see, dear readers, we’ve undertaken a complete redesign of our fair site, and the change went live this past weekend. We’re very excited about the new look.

When we first began to develop this site in the early days of 2010, we started with a pretty straightforward – generic, really – Blogger template. We added a few minor bells and whistles, but our limited design skills kept us from doing much more  (as our collective knowledge of HTML design is limited to 1996 levels).  That Blogger template served us well for nearly a year and a half during this blogging enterprise. But we always hoped that someday in the future we would be able to unveil a sleek new look, just as the driver of a practical and economical vehicle longs for a sports car.

Well, we finally made it.

None of this would have been possible without our friends at The Skyline Group, the local media and design firm that redesigned the site and taught us all our new WordPress platform.  Here’s how they describe the magic they do:

With The Skyline Group, a full-service agency located in Greenville, South Carolina, one company handles the creative, interactive, video production and print needs of its clients. We maintain consistency of message and quality across all disciplines. From initial collaboration to final delivery, the entire group focuses on making sure your message is carried out creatively, seamlessly and effectively across all media to reach your target market.

If  you’re in the market for a new blog template or website design, we highly recommend them. Special kudos to Skyline’s Brian Whitaker for his advice and patience. (It can’t be easy to teach a bunch of know it all lawyers about Internet technology!)

We encourage you to explore the new site and give us your thoughts. For those of you who read the site by email or RSS feed, click here to see the new template. In the mean time, we’ll resume regular posting tomorrow.

Friday Links

  • Depicted above is the cover of Justice #24, published way, way back in 1951. As you can see, it’s a very, very busy cover promising “true cases proving crime can’t win” and that “every case [is] taken from real life.” Apparently, the criminal defendant in question is incensed – and being restrained by the bailiff – while he charges that the witness on the stand is attempting to frame him for murder. Our trials are never like that.
  • Lawyerist tells us how to avoid answering phone calls. This is good advice. Especially on a Friday, as today.

  • Findlaw’s Legal Grounds blog has this story: “Thieves Return Superman Historical Marker.” We’re glad they found a conscience, although we hope the Justice League was somehow involved in the return of this plaque. We may never know.
  • How might the iPad forever change our judicial system? Steven Farrell at The Mac Lawyer may have the answer.

Botox Maker Hit with $200 Million Punitives Award, But Award Subject to State’s Cap

A federal court jury in Richmond, Virginia, recently ordered drugmaker Allergan, Inc. to pay a staggering $212 million to a 67-year old man who said he suffered brain damage as a result of receiving Botox injections to treat cramps and tremors in his hand in 2007. Ray v. Allergan, Inc., 3:10-cv-00136 (E.D. Va. April 28, 2011). The plaintiff reportedly alleged in his suit that Allergan failed to warn him that Botox injections could trigger an autoimmune reaction that could cause brain damage. He alleged that the injections caused severe medical complications which resulted in total disability and $643,800 in medical costs. He reportedly alleged in his complaint that the drug left him “frequently confused or disoriented,” and that Allergan did not sufficiently warn doctors or patients of the possibility over fear of losing sales.

Bloomberg.com reports that the jury’s award includes $12 million in compensatory damages, and an additional $200 million in punitive damages. Botox is Allergan’s top-selling drug, accounting for $1.42 billion in sales last year alone, which was 29 percent of the drugmaker’s revenue. Perhaps the jury thought that such huge numbers in revenue justified a huge punitive award. Interestingly, however, by Virginia statute, the punitive damages award will be capped at $350,000. The statute further provides that although the jury is not to be made aware of the cap, the trial court is to reduce the award in accordance with that law. Allergan’s spokeswoman has said the company has not yet decided whether to appeal the verdict, but if it does, attorneys for the plaintiff plan to “attack the constitutionality of the cap.”

This is not the first big award handed down against drugmaker Allergan. Last May, we reported here on a $15 million verdict in favor of an Oklahoma doctor who similarly alleged she suffered injury from Botox as a result of the maker’s failure to provide sufficient information regarding possible side effects. In that instance, Allergan vowed to appeal the verdict. It remains to be seen whether in this instance Allergan will take the benefit of Virginia’s punitive damages cap and pay, or whether it plans to similarly appeal the most recent verdict.

Expert Used to Deny Summary Judgment in Kitchen Fire

I think all lawyers are nominal conspiracy theorists. What else does the law school environment teach other than not to trust anyone at any time, and that most people – probably all – people are out to get you? At the risk of being untoward, but last month’s Godwin v. Electrolux Home Products, Inc., No. 2:09-0106, 2011 WL 1357691 (M.D. Tenn. Apr. 11, 2011) [PDF] makes you wonder what a plaintiff (or his subrogee) can pull out of his hat.

The crux of the case involves that perilous issue: expert testimony. The court, in assessing the admissibility of such testimony, ruled that the Plaintiff’s expert could testify as to the source of a fire based on burn patterns, and rightly so, as the expert was qualified and burn patterns are a reliable source of data to use in an house fire. Thus, Plaintiff’s expert’s testimony precluded summary judgment in favor of the defendant. But something seemed a little off in the facts.

Frances Godwin’s home is destroyed by a fire. There seems to be no dispute that the fire originated at the stove. However, the stories of the reason for the fire diverge. I assume that Godwin’s insurer brought the action as a subrogee, and that’s what makes this case particularly interesting. If Godwin burned down the house because of her own negligence, then the insurer is out the money paid for the claim. But if there is some chance that a product defect contributed to the fire, then the insurer can spread the misery around a bit. The plaintiff put forth a theory that the stove in the home was defective, but the defendant put forward these facts:

A dispute arises as to the timing of the fire alarm at Plaintiff’s residence. According to Plaintiff, the fire alarm occurred at approximately 5:35 p.m., to which two different fire departments responded. (Docket Entry Number 49, Plaintiff’s Responses to Defendant’s Statement of Material Facts at ¶ 2). The fire department report for the Cumberland County Fire Department reflects that the fire alarm sounded at 7:11 p.m., Jay Schienost, Plaintiff’s daughter, places the fire starting between 5:30 and 5:45 p.m.

Defendant cites the testimony of Jimmy Barnes, a volunteer firefighter for the Cumberland County Fire Department, who responded to the fire. Plaintiff allegedly stated that she had cooked dinner on the stove a couple of hours before the fire and had left some pots and pans on the stove top. Barnes testified that there were pots and pans on the top of the range, and that one of the stove’s top knobs had been left in the “on” position. The Cumberland County Fire Department concluded that the fire “started from something left unattended on the range.”

This seems like a pretty clear case of homeowner negligence. In a cunning move, the insurer hired a fire investigator, who attributed the fire to a defect in the Electrolux stove. (There was some testimony about the self-cleaning mechanism not working properly prior to the fire.) The plaintiff hired a mechanical engineer to opine on the cause of the fire, who stated that the fire was not caused by cooking. Summary judgment denied. In so many other cases, we see ill-qualified experts who cannot withstand Daubert. In this case, careful expert selection helped to create an issue fact resolvable only be a jury, and probably helped Godwin’s insurer recoup some of the loss on the home. Congratulations to Godwin’s insurer in using a slick litigation strategy to get past summary judgment. Whether or not the fire was caused by Godwin’s negligence, perhaps the insurer won’t bear the entire loss. Creation of fact seems to be a fine form of risk spreading.

Federal Hazardous Substances Act Preempts Recovery on Failure to Warn Claim in Fire Death Case

Last month’s Mwesigwa v. DAP, Inc., —F.3d—, 2011 WL 1584760 (8th Cir., April 28, 2011) [PDF] centered around the warnings on a can of DAP Weldwood Gel Formula Contact Cement. The cement is a construction adhesive, and the can looks harmless enough:The warnings on the can, however, tell a different story and were cited extensively by the Court, which described the instructions as follows:
“WARNING! FLAMMABLE! VAPORS HARMFUL AND MAY CAUSE FLASH FIRE” and “BEFORE USE TURN OFF MAIN GAS VALVE.” The lid further instructs the user to keep the product away from heat, electrical sparks, and flame; to shut off pilot lights; to refrain from smoking; to prevent buildup of vapors by opening windows and doors; and to shut off stoves, heaters, and appliances. In addition, the lid depicts an open can with vapors emanating toward a cigarette labeled “smoking,” a gas valve labeled “gas,” a flame labeled “flame/heat,” and electrical volts labeled
“electricity/sparks.” Each of the four pictures contain a bold red line crossed through the black-and-white image.The can further includes “Precautionary measures for use, handling, storage and disposal”:Use in a well ventilated area. Provide fresh air such that chemical odors cannot be detected during use and while drying. Vapors are heavier than air and will collect in low areas. Check all low areas (basements, sumps, etc.) for vapor before entering. Vapor may ignite explosively. Keep away from heat, sparks, and flames. Do not smoke. Extinguish all flames and pilot lights. Turn off stoves, heaters, electric motors and other sources of ignition during use and until all vapor is gone. Keep container closed when not in use. Do not reuse the empty container. Do not use in areas where static electric sparks may be generated. Empty container may contain explosive vapors. Do not weld, cut or torch on or near this container. Store away from oxidizers and caustics. Wear gloves. Avoid skin contact. Wear eye protection with side shields.

The can also included the following warnings: “DANGER! FLAMMABLE LIQUID AND VAPOR HARMFUL OR FATAL IF SWALLOWED,” “VAPOR HARMFUL,” “BEFORE USE TURN OFF MAIN GAS VALVE,” “VAPORS CAN TRAVEL ALONG FLOOR TO ANY SOURCE OF HEAT, SPARK OR FLAME IN NEXT ROOM OR BASEMENT .”

Obviously, when not handled properly, this product can have grave consequences. The plaintiff’s decedent in this case unfortunately learned this fact first-hand. He purchased a can to install new baseboards in his house, and accidentally spilled some of it in his laundry room. When he went to wipe it up, the vapors ignited and caused a flash fire. Mr. Mwesigwa suffered extensive burns and died because of his injuries. His widow and children sued the manufacturer, DAP, for (1) wrongful death on theories of negligence, strict liability, and failure to warn; (2) for negligent misrepresentation; and (3) for violations of the Consumer Product Safety Act. The district court granted summary judgment in favor of DAP. The plaintiffs appealed the summary judgment on the wrongful death failure to warn claims.

DAP’s product is a hazardous substance sold for household use, and therefore, falls under the purview of the Federal hazardous Substances Act (FHSA). The FHSA requires such products to “bear adequate cautionary labels,” but, as the Court pointed out, the statute also preempts any failure to warn claims based on an argument that the label should have included particular warnings not required by the FHSA. Rather, the only claim that the plaintiffs could bring would be an allegation that the label did not comply with the FHSA.

The plaintiffs attempted to assert that the label did not comply with the FHSA because it failed to warn that one of the principal hazards of the cement was the risk of fire from an accidental spill, separate and apart from the general flammability. “Principal hazard” is a defined term under the law, meaning “the principal or primary hazard(s) associated with a hazardous substance.” The Court affirmed the grant of summary judgment as to this argument, since “the risk of fire from an accidental spilling of DAP cement is not a principal hazard that the FHSA requires the label to state affirmatively.”

The plaintiffs also argued that the label failed to state that, in the event of a spill, the product should not be wiped but absorbed with an inert absorbent. The Court also rejected this argument because “the FHSA does not require the DAP cement label to warn consumers against spreading the product after a spill as a precautionary measure.” The term “precautionary measures” is referred to under the statute as steps needing to be followed to avoid or minimize the “principal hazard” of the product.

The Court did a nice job summarizing its findings in this way: “The label complies with the FHSA because the principal hazard to be avoided is flammability, and the way to avoid that hazard is to remove all potential ignition sources.” Because the extensive labeling on the can of DAP complied with those requirements, summary judgment was affirmed as to the failure to warn claims.

Side note: DAP cement apparently also comes in a non-flammable version:

Press Your Luck: Two Injuries, Two Statute of Limitations Periods

Unless you are one of those fictional big tobacco executives portrayed in anti-tobacco television commercials, you know that tobacco has been linked to a number of diseases – cancer, emphysema, and heart disease, to name a few. Unfortunately for many tobacco users, these diseases are not exclusive and often do not coordinate among themselves as to when to manifest. As a result, tobacco users plaintiffs, when opting to litigate their usage, face a dilemma. Should they sue cigarette manufacturers upon the first onset of disease or wait for a potentially more dangerous side effect? Recently, the California Supreme Court weighed in with its solution.

In Pooshs v. Philip Morris USA, Inc., No. S172303 (Cal. May 5, 2011), the plaintiff sued a number of cigarette manufacturers in California state court after being diagnosed with lung cancer in 2003. Previously, the plaintiff had been diagnosed with chronic obstructive pulmonary disease (COPD) and periodontal disease in 1989 and 1991, respectively, but chose not to pursue a claim at those times. After the state case was removed to federal court, the judge dismissed the plaintiff’s claims on statute of limitations grounds. Undeterred, the plaintiff appealed to the Ninth Circuit Court of Appeals, which in turn guidance from the California Supreme Court as to the application of the statute of limitations when separate diseases arise at different times from the same alleged wrongdoing.

The defendant manufacturers argued that allowing the plaintiff to bring her claim under these circumstances would violate the standard that a statute of limitations begins to run when the plaintiff suffers “appreciable and actual harm, however uncertain in amount.” The plaintiff argued against the application of that well-settled rule and contended that each of her three ailments was the basis of a distinct primary right. The California Supreme Court ultimately agreed with the plaintiff, holding that “two physical injuries . . . can, in some circumstances, be considered ‘qualitatively different’ . . .” for statute of limitations purposes.

On one hand, the Court’s holding is logical. Each of the plaintiff’s diseases is separate and distinct from the other. It would seem a bit ridiculous to require a plaintiff to sue for potential lung cancer when her only known damages are COPD or periodontal disease. Imagine the flood of litigation if the Court were to make such a requirement. On the other hand, this holding shakes the foundation of the law school paradigm “one tort, one claim for damages.” This is not a case where a plaintiff suffered property damage and later had a claim for personal injury arising out of the same event. Rather, the plaintiff has suffered personal injury – albeit three separate and distinct diseases – arising out of the same cigarette smoking.

While we here at Abnormal Use do not intend to make light of the seriousness of the damage caused by tobacco use, we must admit the Court’s holding conjures up images of a litigation-themed Press Your Luck. The opinion did not suggest that the plaintiff intentionally delayed pursuing litigation until she contracted lung cancer, but apparently tobacco users in California now have that option. Hopefully, they won’t land on any whammies while they wait.

Friday Links

  • It’s Friday, so as per usual, we bring you legal themed comic book issues. We’re a bit troubled by the revelation in Action Comics #900, issued late last month, in which Superman appears to renounce his American citizenship. How can a comic book superhero so closely associated with the United States of America do such a thing? We’re puzzled. We’re crestfallen. The only other person we can think of offhand who attempted to renounce his American citizenship was Lee Harvey Oswald. That’s not good company. What is Supes thinking? How does this affect the citizenship of Clark Kent? What does Lois think about this decision? Friend of the blog Ryan Steans offers his analysis here, while our pals at The Law and the Multiverse blog analyze the legal issues here.
  • Like many, we’re fans of the late, great novelist David Foster Wallace who, sadly, took his own life two years ago. Just a few weeks ago, Wallace’s last, unfinished novel, The Pale King, saw publication. We’re thankful that one of our readers writes in to report of a products liability lawsuit reference in Wallace’s mostly complete tome:
    Your readers may be interested in an amusing products liability case which appears in the recently published posthumous novel The Pale King by David Foster Wallace. On pp 200-207, a case is described in which a man’s arm is trapped in the doors of a subway train he is trying to catch, the fatal injuries that result, and the subsequent wrongful death litigation. That litigation is described as incredibly complex and such issues are raised as -

    1. “The manufacturer’s specifications for the doors’ pneumatic systems did not adequately explain how the doors could close with such force that a healthy adult male could not withdraw his arm” resulting in the manufacturer’s claim that the deceased “failed to take reasonable action to extricate his arm,” and the ensuing difficulties in refuting this claim.

    2. And, of course, the ever important question of whom to sue, and the conflict arising when the plaintiff realizes “that our legal team’s major criterion for arguing for different companies’, agencies’, and municipal entities’ different liability designations involved those different possible respondents’ cash resources and their respective insurance carriers’ record of settlement in similar cases—that is, that the entire process was about numbers and money rather than anything like justice, responsibility, and the prevention of further wrongful, public, and totally undignified and pointless death.”

    Interesting.

  • Eric Turkewitz of the New York Personal Injury Law Blog predicts that the iPhone GS data controversy will lead to a flurry of subpoenas. He notes that the data would be handy in wreck cases and other contexts, as well. We wonder how receptive Apple would be to subpoenas from all over the country seeking such data. Will they be as resistant to such discovery as Facebook and other such sites? We shall see.
  • By no means is Abnormal Use a career site; we’re not here to help you find jobs. But friend of the blog Monica Handa offers these helpful tips for those seeking legal jobs in these trying and troubling economic times. As the hiring contact for her firm, Monica has seen her fair share of deficient resumes, so perhaps she knows a thing or two about the perils of job seeking and issues relating to such quests. An aside: We might add that when applying for a job at our firm, mentioning your adoration of Abnormal Use is a plus. It’s probably best that they don’t let us bloggers play any role in that process. Oh, well.

Abnormal Interviews: Law Professor Jennifer Wriggins

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to University of Maine School of Law professor Jennifer B. Wriggins, who teaches Torts, Insurance Law, and Family Law. Last year, her book, The Measure of Injury: Race, Gender, and Tort Law, was published by the NYU Press. The interview is as follows:

1. What do you think is the most significant recent development in torts and products liability litigation?

I think that the continuing lack of conceptual clarity about comparative fault is very significant and interesting. What I mean is this: While contributory negligence has been on the wane for decades now there remains, I think, lots of vagueness about how its replacement, comparative fault (comparative negligence), is supposed to work. Statutes and jury instructions are often not at all clear about how the defendant’s action is supposed to be compared to the plaintiff’s action, even when they are engaging in the same activity, like driving. This is particularly the case with multi-party litigation. There is, relatedly, rather little clarity about how to quantify (and thus compare) actions by many different parties that are very different in nature. Yet, comparative fault is widely accepted and generally seen as an important improvement over contributory negligence. There is a huge disconnect, I think, with the everyday way that people think about causation and fault, and the fascinating and unwieldy system we have now with comparative fault and comparative responsibility.

2. What rule or concept in modern torts or products liability jurisprudence do you believe is the most outdated, and why?

One rule that strikes me as possibly outdated is the rule that juries are not allowed to learn about liability insurance policies. Even when a case involves an auto accident, and auto insurance is mandatory in a state (as it is in almost all states), so that jurors who are car-owners (probably most jurors) know that there is likely to be insurance, jurors are not supposed to know about insurance. I understand that it is important for the liability and damages issues not to be affected by the presence or absence of insurance, but I think it is very likely that jurors think about insurance anyway. I would want to think about this more before advocating it, but perhaps we should just give jurors the insurance information and tell them it should be kept separate from the liability and damages determinations. If they are hypothesizing about insurance and taking it into account anyway, then giving them accurate information should not hurt the process. I can see both sides of this, but I think we are probably deluding ourselves if we pretend jurors don’t know and aren’t thinking about the existence of liability insurance.

3. You have written much on the role of race and gender in litigation. In your view, how do these concepts affect tort cases specifically, and what would you advise civil litigators to keep in mind on that front?

One place where race and gender can come into play is damages. In my book, The Measure of Injury: Race, Gender and Tort Law (NYU Press 2010), my co-author Martha Chamallas and I talk about how in cases where an individual lacks an earnings history (for example a child) and suffers an injury that will affect future earnings, experts and courts still use race-based and gender-based earnings tables to project earnings into the future. Many experts and lawyers, I think, simply assume that these categories have to be used and don’t think of them as problematic at all. We argue that this use of tables is deeply problematic and potentially unconstitutional because using the tables in court is in effect a race-based or gender-based classification. Judge Weinstein of the Eastern District of New York issued a ruling in October 2008 that agreed with this position. We also talk about how caps on non-economic damages can affect claims of women, members of racial minorities, and minority women, who may have serious injuries but small lost earnings, making their claims perhaps too small to be worth bringing. Research has suggested this is happening in California and Texas, for example.

BONUS QUESTION: What do you think is the most interesting depiction of the interaction of law and medicine in popular culture, and why?

One of the most insightful depictions of the interaction of law and medicine in popular culture is a book, Damages, by Barry Werth (1998). He deals in a very nuanced way with the interaction of insurance, doctors, patients, and lawyers in a heart-breaking Connecticut infant cerebral palsy case. It’s also a great read.

BIOGRAPHY: Professor Jennifer B. Wriggins, the Sumner T. Bernstein Professor of Law at the University of Maine School of Law, teaches Torts, Insurance Law, and Family Law. Upon receiving her J.D., Professor Wriggins served as Clerk to Hon. Edward T. Gignoux, U.S. District Judge in Portland, Maine. She was a Visiting Professor at Harvard Law School and Boston University School of Law in Spring 2005.

Revisiting The Unreasonably Dangerous Undergarment

Generally, when a matter originating from South Carolina reaches a level of national discussion, we don’t find the news coverage to be entirely favorable. Much of that criticism is undeserved. We must confess, though, that our fair state is not immune to litigious ridiculousness. Indeed, suits brought by unreasonable Plaintiffs still percolate through our court system.

Today, dear readers, we revisit the case of the dangerously defective bra.

Take for example, the very recent Bennett v. Hanesbrands, Inc., No. 2-11-0613, 2011 WL 1459213 (D.S.C. Apr. 15, 2011). At the time of our initial post, the complaint was made in state court. However, the defendants removed the case, as defendants often do, and the plaintiff’s attorney filed a motion to remand, arguing that the purported permanent discoloration of his client’s skin was worth less than $75,000. Presumably, the Plaintiff sought to avoid federal court due to the mandatory scheduling order, expert deadlines, and other work that must go into the litigation of a case in federal court. Judge Norton, after analyzing the complaint, decided that the facts alleged in the complaint could in fact support diversity jurisdiction, because the Plaintiff capped the value of only one cause of action, rather than on all her causes of action alleged. Accordingly, he denied the Plaintiff’s motion for remand, and the case stay with the feds.

Judge Norton did not recite the facts set forth in the state court complaint, a copy of which is available on PACER as well as here [PDF]. However, our faithful readers will recognize that we previously blogged about this suit, prior to its removal, in which Ms. Bennett pleaded that “the defendants knew or should have known that the bra was an inherently dangerous product.”

Obviously, the counsel for the plaintiff knew or should have known that if a defendant spots a chance to remove a lawsuit, it likely will. Hanesbrand and Wal-mart did so in March, and it seems that recoverable damages on the face of the complaint were in excess of $75,000.

Judge Norton ended his opinion with an invitation to the plaintiff: “should plaintiff wish to voluntarily dismiss her case without prejudice, the court would be pleased to entertain such a motion.” We’ll see what happens. Perhaps the defendants will be happy to litigate in federal court and force the plaintiff to expend some resources on discovery and expert reports. I’m certain that permanent skin discoloration would support some significant expert work. Now that this is a federal case, it will be easier to track, but the lesson to be learned here, is, to make sure to plead that in no event are recoverable damages in the entire matter more than $75,000, lest you find yourself in federal court.