Water, Water Everywhere and Not a Drop to Drink (If You’re Downstream)

Recently, I had a great conversation with the executive director of a facility that processes wastewater. Inevitably, the conversation turned to the scandalous parts of his job. So, I asked, ever find anything unusual in this stuff? Of course he had. Blah, blah, blah, alligators, turtles, et cetera. The usual. Here’s what he’s also found: chemical evidence of illegal drug use. Which only makes sense, right? People are going to take drugs, excrete waste, and their excrement will contain evidence of the habit. Very interesting.

Here’s where the story takes a turn for the disturbing. It’s something I never thought about, and maybe you haven’t, either.

What about prescription drugs? Ever dumped any leftover prescription pills into the toilet? Know anyone that has? How about all the folks who take prescription pills on a daily basis and then use the bathroom? You know who that describes? Literally everyone. Regardless of the manner of entry, the chemical remnants of prescription drug use end up in the water supply.

Here’s the bad news: almost no locality does any pre-treatment for the chemicals in the water supply that would address this issue. Although government agencies are studying these circumstances, there is no published information on the ultimate effect of the consumption of chemical remnants on downstream consumers.  But if we’re taking bets on whether having chemical remnants of prescription and non-prescription drugs in your water supply is a good thing, I’ll take the under on that.

It’s probably just a matter of time before claims are brought against someone for this water supply issue. I say “someone” because it’s not entirely clear who claims could be brought against. It’s foreseeable that an individual would try to sue pharmaceutical companies, but there would be obvious problems with causation, among other issues. It’s also conceivable that a downstream individual or body politic would sue an upstream body in nuisance for the contamination of the water supply. But again, there would seem to be causation problems.

In any event, the immediate priority should be making sure that everyone has clean, safe water to drink.

Eighth Circuit Engages Drug Manufacturer in Semantic Exercise

I know you lawyers can, with ease, twist words and meanings as you please.

- John Gay

We here at Abnormal Use imagine the 18th Century wordsmith uttered these words in a derogatory tone, but we can still appreciate his sentiment.  After all, we do pride ourselves in our “interpretations” of laws, contracts, and transcripts.  But, we don’t like to call it ”twisting.”  Rather, we are enaging in a “semantic exercise.”

Recently, in Schilf v. Eli Lilly & Co., No. 11-2082, 2012 WL 3139233 (8th. Cir. Aug. 3, 2012), the Eighth Circuit put on a fine display of its own expertise in the linguistical arts.

In that case, the Schilfs filed suit against Eli Lilly and Quintiles Transnational, alleging that Lilly’s failure to warn of a link between an anti-depressant and suicide caused the death of their teenage son.  The 16-year old boy visited his family doctor in November 2004 to discuss his depression.  The doctor gave the boy samples of the antidepressant, Cymbalta.  The medication had been removed from the packaging and, thus, lacked any warnings.  When dispensing the samples, the doctor informed the boy that there may be an increased “association” with anti-depressants and suicidal ideations, but ”no completed suicides” occurred during the clinic trials.  The boy began taking the drug and committed suicide a few weeks later.  Thereafter, Lilly revised the literate for Cymbalta to include an FDA-approved black box warning.

The district court granted Lilly’s motion for summary judgment, holding (1) that a warning would not have informed the doctor of anything he did not already know and (2) that the doctor would have prescribed the drug even if he knew of the actual risks.  The Eight Circuit disagreed with both points.

Now, here comes the Olympic-esque semantic exercise.  As to the first point, the Eighth Circuit found that a warning could have pointed the doctor to more knowledge of the drug.  According the Court, the doctor was not aware of a “causal link” between Cymbalta and suicide, but, rather, an “association.”  In support, the Eighth Circuit pointed to the doctor’s deposition testimony, in which he stated that was aware of an FDA study finding such an association, but believed the FDA wasn’t “saying the risk was there.”  Under South Dakota law, warnings of side-effect associations are typically not warnings of causal connections.

Contrary to the doctor’s belief, the FDA press release did, in fact, find a causal connection.  The district court found that the doctor “read” this release and, thus, knew of the risks.  The Eighth Circuit pointed out, however, that the doctor only testified that he was “aware” of its existence. Clearly, a distinction.

On the second point, the district court based its finding on some testimony that the doctor still believed his prescription decision was appropriate.  Not so fast!  Being such fine stewards of the English language, the Eighth Circuit examined the testimony a little more closely.  When asked if there was anything he would differently, the doctor actually answered, “Not at the time.  I did – I did exactly what I would have done.”  “Not at the time” being the operative phase.  If he didn’t know of the suicide related information, he clearly wouldn’t have had reason to alter his decision.

If we were judges, we would have to give the Eighth Circuit high technical marks for its linguistic efforts.  However, instead of lecturing the district court on its interpretation of a deposition transcript, we would still would appreciate some more guidance on that whole failure to warn issue.

A Very Brief Primer on the FDASIA

On July 9, the Food and Drug Administration Safety and Innovation Act (FDASIA) was signed into law by President Obama.  Thanks to the FDA Law Blog for the correct pronunciation of the acronym–”fuh-day-zha.”  This law focuses on several goals.

Under FDASIA, the FDA can collect “user fees” in order “to fund reviews of innovator drugs, medical devices, generic drugs and biosimilar biologics. It also reauthorizes two programs that encourage pediatric drug development.”  Other provisions of the FDASIA aim to improve pharmaceutical supply chains, change approval and regulation processes, and provide incentives for the development of drugs to treat rare diseases.

Part of the effort to combat drug shortages includes provisions requiring manufacturers to notify the government of any problems or issues that may lead to shortages down the line; in the past, such reports were completely voluntary by the manufacturer.  Manufacturers who fail to report under the law are subject to sanctions.  More about the FDASIA’s provisions with regard to drug shortages can be found here.

Other sections of the law incentivize manufacturers to research and develop products for antibiotic-resistant infections, expedite the approval process for certain products, and regulate “medical gases.”

If you’re up for some light reading, the FDA Law Blog provides a link to a 75-page “summary” of all 11 titles of the law by the FDA powerhouse firm Hyman, Phelps & McNamara, which can also be found here.  Or, if you think that a summary just isn’t enough to satisfy your curiosity, you can read the law itself here.

New Jersey Court: No Dice on “Innovator Liability”

A basic principle of products liability law is that liability follows the product in the chain of distribution. In other words, if the manufacturer did not make the product, it cannot be held liable.  But precedent and legal principles be damned, plaintiffs’ attorneys have been pushing a new theory of  liability called “innovator liability.” Under this theory, brand-name drug manufacturers (the “innovators”) may be liable for injuries to plaintiffs who only ingested generic versions of their drugs.  In other words, it requires brand-name manufacturers to answer for injuries allegedly caused by drugs they did not manufacture.  Sounds a bit ridiculous, right?  Fortunately, a New Jersey court recently said “no dice” to innovator liability in the case of Coundouris v. Wyeth, et al., No. ATL-L-1940-10, 2012 WL 2401776 (N.J. Super. Jun. 26, 2012) [PDF].

The plaintiffs  alleged that the brand-name defendants were liable for injuries caused by generic versions Reglan/metoclopramide.   Specifically, they alleged that that the defendants owed a duty to exercise reasonable care to adequately warn doctors and users about the risks of metoclopramide.  The defendants argued that under the New Jersey Products Liability Act (“PLA”), brand-name drug manufacturers could not be held liable for injuries allegedly caused by the use of a generic drug manufactured by another company. The plaintiffs asserted that their claims were not governed by the PLA and were instead negligence claims governed by common law.

The court concluded that the PLA governed the plaintiffs’ claims, noting that the focus of plaintiffs’ claims was the defendants’ failure to warn about metoclopramide’s dangers and that the state legislature’s intent was for such claims to fall under the PLA.  The court further noted that it is well-established that product identification (proof that the product that allegedly harmed the plaintiff is actually the defendant’s product) is an essential element of a plaintiff’s prima facie product liability action.  As such, the court held that the plaintiffs’ claims must fail under the PLA to the extent that the plaintiffs never ingested products sold or manufactured by the brand-name manufacturers.

The court’s  decision seems based on sound legal precedent and is in line with the decisions of other states that have evaluated the viability of innovator liability.  In case you’re counting home, so far California is the only state to adopt the theory of innovator liability.  It did so in the case Conte v. Wyeth, Inc., 168 Cal. App. 4th 89 (2008).  We’re every bit as shocked as you are that California would be on the outside looking on any legal issue (insert sarcasm here).

(Hat tip to John J. Sullivan at the Drug and Device Law blog).

Of Pro Se Plaintiffs and Drug Warnings

My two-year-old son had an ear infection last week and, like a good mother, I took him to the pediatrician, who prescribed a liquid antibiotic with a name that, despite my seven years of higher education, I cannot pronounce.  Waiting for him to finish his supper that night, I began to read the fine print.  Apparently, in addition to ear infections, the antibiotic can be used to help treat an STD that I also cannot pronounce, and had to look up on Google.  What can I say? You learn something new every day.  I learned that I might never again read the insert on a prescription drug.

What does this have to do with products liability?  Warnings, people.  Warnings.  I just admitted to the blogosphere to never having read the fine print on a drug before, and I have vowed to never do so again.  Products liability law, however, knows this and has adapted – as illustrated by the case of Rice v. Genentech, Inc., No. 1:10-CV-3631-TWT, 2012 WL 205886 (N.D. Ga. Jan. 24, 2012).

This case is nothing special: an extremely short decision outlining the reasons that the defendant, drug maker Genentech, was granted summary judgment against a pro se plaintiff who alleged that Genentech’s eye drug, Lucentis, exacerbated the plaintiff’s glaucoma and sight loss.  Basically, the plaintiff failed to name an expert, despite several deadline extensions to do so.

In this unremarkable decision, however, is a reminder about the law regarding warnings and prescription drugs:  “Prescription drug manufacturers have a duty to warn the patient’s doctor of the dangers involved with their product rather than warn the patient directly.” (emphasis added).  The decision also cites the rule of thumb regarding experts in drug cases like this one – “in cases of pharmaceuticals, since the warning is directed to physicians, only they or someone with similar expertise concerning pharmaceuticals would be qualified to determine whether or not the warning was adequate” (internal quotations and citations omitted).

Well, there you go.

When a $158 million settlement is a “Victory”

On Thursday, January 19, mega-company Johnson & Johnson and the State of Texas reached a settlement for the bargain price of $158 million in a Medicaid fraud lawsuit.  The allegations?  That J&J committed Medicaid fraud by engaging in illegal marketing activities and providing kickbacks to boost sales of the anti-psychotic drug Risperdal, used primarily to treat schizophrenia and bipolar disorders.  The suit also alleged that J&J told doctors that the drug could be used to treat children, for which it did not have FDA approval.  Oops.

And why was $158 million a bargain?  Well, consider what has happened to the company in other states that have also sued J&J on similar theories.  In Louisiana, the Court ordered the company to pay $258 million; in South Carolina, the bill was a cool $327 million.

As reported by the Washington Post, then, $158 million doesn’t look so bad:

“For Johnson & Johnson, it’s a mighty easy result,” said Eric Gordon, a clinical professor at the University of Michigan’s Ross School of Business. “The legal team at Johnson & Johnson are doing high fives.”

Indeed.

Preemption Returns to South Carolina

The topic of preemption comes up regularly in our posts, because it is such an important issue in products liability litigation.  As you can imagine, most of the cases come out of the drug context – the design, manufacture, and labeling of prescription drugs, so heavily regulated and controlled by the Food and Drug Administration, makes the drug industry a perfect forum to litigate preemption issues in products cases.

Recently, the U.S. District Court for the District of South Carolina heard a case in which the primary issue was preemption.  In Fisher v. Pelstring, et al., No. 4:09-cv-00252, 2011 WL 4552464 (D.S.C. Sept. 30, 2011), the court considered the case of William Fisher, who was diagnosed with a neurological condition after taking the generic version of a prescription drug used to treat acid reflux that was manufactured by a company called PLIVA.  Mr. Fisher and his wife brought medical malpractice causes of action against the doctor who prescribed the drug, as well as products liability causes of action against Pliva and two makers of the prescription brand of the drug, including strict liability, breach of express warranty, negligent misrepresentation, breach of undertaking special duty, fraud and misrepresentation, and constructive fraud.

There is something very important to note about the labeling of prescription drugs versus the labeling of generic drugs, as the court noted in its decision.  Brand name manufacturers are responsible for “the accuracy and adequacy of [a drug's] label,” meaning that they must go through the expensive and lengthy process of getting FDA approval for its label.  Generic manufacturers, on the other hand, are only responsible for making sure that the label they use is the same as the one used for the brand-name drug.

The plaintiffs argued that PLIVA failed to adequately warn consumers of the risk of neurological disease on its label, and that such a failure constituted a violation of state products liability laws.  Now, while the Fisher case was moving along, the U.S. Supreme Court was considering the case of PLIVA, Inc. v. Mensing, —U.S.—, 131 S. Ct. 2567 (2011).  In Mensing, the Court sided with PLIVA, which argued that if it were to unilaterally change its label to comply with state law as the plaintiffs in that case argued, it would violate federal law as prescribed by the FDA.

Good news for PLIVA in the Fisher case, right?  Well, it would have been, except for the fact that the plaintiffs were able to show that PLIVA’s generic label did not comply with the label on the brand name drug, and that the correct label would have warned the consumer to limit use of the drug to 12 weeks.  As the court noted, “[o]nce the FDA approved the addition of these warnings to the [brand-name] label, PLIVA has not indicated that any federal law prevented PLIVA from also adding these warnings to its generic . . . products.”

Based on this fact, the district court denied PLIVA’s motion to dismiss based on preemption.  The court did, however, base its decision to grant summary judgment for PLIVA on several causes of action on preemption analysis, including the causes of action for design defect, breach of express warranty, negligent misrepresentation, breach of undertaking a special duty, fraud and misrepresentation, and constructive fraud.

Rewriting David and Goliath: Plaintiffs’ attorneys get payoff in Vioxx litigation

On August 9, 2011, the Eastern District of Louisiana approved the distribution of attorneys’ fees following the global settlement of litigation involving Merck’s troubled drug Vioxx in In re Vioxx Product Liability Litigation, — F.3d — , No. 2:05-MD-01657, 2011 WL 3563004 (E.D. La. Aug. 9, 2011) [PDF].    Developed and marketed to treat arthritis, menstual pain and migraine headaches, the drug was approved for sale by the Federal Drug Administration on May 20, 1999.  Merck pulled the drug off the market on September 20, 2004, after a clinical trial found that the drug increased the risk of cardiac incidents like stroke and heart attacks.

As expected, thousands of individual cases and multiple class actions filed against Merck in the aftermath of the recall.  Eventually, those cases filed in federal court were consolidated in an MDL in the Eastern District of Louisiana.  It was estimated that more than 50,000 claims were filed against Merck after 20 million patients took the medication.  After consolidated discovery, several trials commenced before the parties started talking about a global settlement.  Those talks were successful, and a Settlement Agreement was entered.   See Settlement Agreement, In re Vioxx Prods. Liab. Litig., MDL 1657 (E.D.La. Nov. 9, 2007), available at http://www.browngreer.com/vioxxsettlement.

The Settlement Agreement gave people the ability to opt-in to resolve their pending or tolled cases against Merck, and the total amount set aside for the payment of claims was $4.85 billion.  With a “b.”  Apparently, according to the August 9 order, the settlements went smoothly from a logistical standpoint:

The Settlement Program proceeded at a very rapid rate and Merck made additional payments in order to ensure that the claimants would receive funds in a timely fashion. . . . [I]n only 31 months, the parties to this MDL case were able to reach a global settlement and distribute Four Billion, Three Hundred and Fifty-three Million, One Hundred Fifty-two Thousand and Sixty-four Dollars ($4,353,152,064) to 32,886 claimants, out of a pool of 49,893 eligible and enrolled claimants. This efficiency is unprecedented in mass tort settlements of this size. It was due in large part to the ability, industry, and professionalism of the attorneys for both sides, the plan administrators, the lien administrators, the pro se curator, and the special masters.

With the payments to the claimants completed, it was time to pay the lawyers who had displayed such commendable “ability, industry, and professionalism.”  A Fee Allocation Committee was convened, and they had their work cut out for them.  The court quoted a prior pretrial order regarding reimbursement for expenses:
“[A]ny attorney wishing to have their time considered for an allocation of any common benefit award” was directed to submit a three-page written affidavit to the FAC articulating their contribution, with emphasis on factors including “substantial contribution to the outcome of the litigation,” quality of work, “consistency quantum, duration, and intensity of … commitment to the litigation,” “level of partner participation,” committee membership and leadership positions, the “jurisdiction in which non-MDL common benefit work occurred,” “[a]ctivities surrounding trials of individual Vioxx claimants, including bellwether trials and non-MDL trials that impacted proceedings on a common benefit level,” participation in ongoing work for the common benefit, involvement in Vioxx litigation prior to withdrawal of Vioxx from the market or the MDL, contribution to funding of the litigation, commitment to the litigation after adverse verdicts, and any other relevant factors.
Over one hundred firms or attorneys submitted almost twenty-four hundred pages of affidavits and supporting documentation, all of which were entered into the record.  Although they requested 8 percent, the Court approved a compensation of 6.5 percent of the final settlement for the plaintiffs’ attorneys, a total of $315,250,000.00.  Oh, and just a side note: that was in addition to their fees.  In the end, 108 law firms were granted monetary awards from the common benefit fund.
There is an old saying: you have to have money to make money.  Usually, it’s used in the conext of investing.  But this case demonstrates that the same is true in litigation.  Just seeing a few of the reimbursement amounts –$500,000 to one law firm, $4 million to another — proves that in many cases, only the large plaintiffs’ firms who could front those kinds of expenses could take these cases, which were ultimately quite profitable once the underlying settlements  and attorneys’ fees were approved.  So the next time a plaintiff’s attorney plays the David and Goliath game at trial against your firm, remember this case.  Sometimes,you have to be Goliath, too.

Beware: Packaging Defect May Lead to Unwanted Pregnancy

Last week, Qualitest Pharmaceuticals announced that it was recalling birth control pills due to a packaging error which left women at risk for unplanned pregnancies.  Qualitest discovered that select blisters were rotated 180 degrees within the packaging. As a result, the weekly tablet orientation was reversed and the daily orientation was incorrect.  According to the report, no immediate health risks were expected (except the possibility of pregnancy, of course).  This recall poses a few intriguing issues.

First, it is rare to see a drug recalled due to its packaging under these circumstances.  Drug recalls themselves are not uncommon.  Certainly, we can all remember at least one drug pulled from the shelves after the discovery of adverse side effects.  However, recalling a drug due to a packaging error is a completely different story.  If a product is recalled due to a “packaging error,” we might expect it to be the result of mislabeling or an injury-causing plastic bottle.  Seldom, does a packaging error actually affect the performance of the drug itself.

The fact that the mere 180 degree rotation of a product’s packaging can render a product completely ineffective seems curious.  If Crayola accidentally packaged its product in reverse-rainbow order, the crayons would not cease to become coloring utensils.  One would think that if a company is capable of designing a product that can alter reproductive hormones and prevent unwanted pregnancies, it could also design a package not affected by a reverse rotation.

Second, what legal liability may Qualitest face as a result of this error?  We anticipate plaintiffs who have experienced an unwanted pregnancy will expect to hold Qualitest accountable.  They may elect to assert a claim for wrongful pregnancy; however, this cause of action is typically filed against medical providers for failing to perform a sterilization procedure correctly.  If a medical provider can be held liable for failing to perform a vasectomy, so too might a pharmaceutical company for negligently packaging its birth control pills.  If the plaintiffs are unable to assert a wrongful pregnancy cause of action, it is unlikely their “unwanted children” would have a cause of action for wrongful life.  Only a small number of states permit wrongful life actions, and those that do typically require the child to be born with some birth defect.

Third, even if plaintiffs have a cause of action against Qualitest, there most certainly would be some issues of comparative negligence.  While the birth control pills may have been rotated and disoriented, they are also color-coded – the first three weeks of hormone-producing pills are one color, while the last week of placebo pills is another.  By taking these pills on a monthly basis, plaintiffs would undoubtedly have noticed this distinction.

What should we learn from all of this?  Two things: 1) If you are a consumer of birth control pills, check your packaging to make sure you are staying on schedule; and 2) If you are a manufacturer of birth control pills, try using circular packaging.

Vice Squad: Dopamine Agonist Agony

It was a slow news day at the world headquarters of Abnormal Use. Oh sure, the global economy was in the process of melting down. Washington had just created a super-Congress. And Tiger Woods was making a triumphant, yet underwhelming, return to professional golf. Yawn. But as the bureau chief for Abnormal Use: Vice Squad, I was looking for some fresh, products-based inspiration that toed the thin gray line between entertainment and decency. It’s a dirty job down here in the trenches, but there’s nowhere else I’d rather be. So as I’m sitting at the Vice Squad desk, I happened across a pharmaceutical litigation discussion board. I’d thought I’d stop in, just to see what I could see. Happily, what I saw was my inspiration for this post . . . .

Let’s take a quick poll. Imagine you have a condition that requires you to take medication that may cause certain side-effects. How far down the following list of side-effects would you go before you declined the medication, knowing – obviously – that you can’t pick and choose which side-effects you want?

(1) May cause depression.
(2) May cause compulsory shopping.
(3) May cause compulsory eating.
(4) May cause pathological gambling.
(5) May cause hypersexuality or sexually risky behavior.

Based on this list, some folks may choose to stay away from the meds. Others may look at the list of side-effects and think, all things considered, it’s not so bad. Personally, I can name eight people off the top of my head that have more than half of these side-effects and don’t even take medication. I’ll bet you can too. (Feel free to post their names in the comments.)

The side-effects listed above are alleged to occur in connection with drugs that use “dopamine agonists.” To be honest, I don’t understand what a dopamine agonist is; I don’t know what they do; I certainly don’t know how they work; and frankly, I don’t care to know. If you want to know, the best I can do is give you a link to the Wikipedia page and wish you good luck.

Based on my otherwise extensive research, meds that include dopamine agonists are commonly used to treat Parkinson’s Disease and – of all things – Restless Leg Syndrome. If the critics of dopamine agonists are right, a person could go to the doctor to get treatment for his jimmy legs and walk out with an unhealthy sex addiction, an urge to eat at Golden Corral, and the need to let it all ride on 17 black. This, of course, has prompted litigation.

One plaintiff claims that as a result of dopamine agonists, he developed a shopping compulsion and an eating disorder, went to Vegas without telling his wife, began adulterous relationships, and forged checks from his wife’s account. Other plaintiffs have made similar allegations a la that they began using dopamine agonists, that they began committing adultery, and that they would go gambling for days without telling their spouses where they were. See, e.g., Sweet v. Pfizer, 232 F.R.D. 360 (C.D. Cal. 2005). Again, this sounds exactly like people we already know.

A class action involving dopamine agonists and compulsive behavior was filed in Minnesota in 2006. The first case to be tried out of that litigation resulted in a jury verdict of $8.2 million. Charbonneau v. Boehringer Ingelheim Pharma., Inc., C.A. No. 0:06–CV–1215 (D. Minn. 2006) (Note: Since there was no written order regarding the verdict, I’ve included just the case name and docket number, if you want to do more research.  Or you can just take my word for it.). The other cases in the class were settled soon thereafter. Other litigation has sprung up around the country, and in many jurisdictions, is still pending.

As someone who normally practices corporate defense litigation, I began wondering what kinds of affirmative defenses were raised in these cases. I had a feeling they could be entertaining. I was right. I’ve set my favorite affirmative defenses out below:

(5) Proximity to Gambling Outlets. This defense is obviously designed to attack causation: “The drugs didn’t make your no-good father / husband / son / boyfriend gamble; it was the fact he lived next to Caesar’s Palace.” It’s at least plausible.

(4) Personal Susceptibility. “Plaintiff has always been depressed / been overweight / had a gambling problem / been a womanizer.” This seems to tread awfully close to inadmissible propensity evidence, but for an answer to the complaint, that’s a non-issue.

(3) Utility. “The benefits of using dopamine agonists outweigh any negative side-effects that may occur.” This seems like a hard sell when the condition is something like jimmy legs and the consequence is something like bankruptcy, adult-onset diabetes, and a no-expenses paid trip to a sexual rehabilitation clinic where the best you can hope for is sharing a lunch table with David Duchovny.

(2) Bad Gambler. There are no bad gamblers; only bad luck. Motion to strike this defense granted.

(1) Act of God. Act of God? Are you serious?  Isn’t this the same God that condemns avarice, lust, AND gluttony? Is this for real? Yes, this is for real. If you don’t believe me, check out this document: 2006 WL 1829496 (Affirmative Defense No. 5). I would pay to see this defense in action. “And therefore, Ladies and Gentlemen of the Jury, it was not dopamine agonists that caused the plaintiff to have illicit, extramarital sex and to bet on horses; it was God!” Statistically, you’d have 90 percent of Americans ready to punish you for even suggesting that God was the proximate cause of the plaintiff’s injuries. The other 10% would be ready to commit you for suggesting that a figment of humanity’s imagination was responsible. It’s a losing proposition. But it does remind me of the seminal case, United States ex rel. Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D. Pa. 1971), which I’ve linked here for your reading pleasure.

I have two last observations. A quick bit of research on Westlaw yielded a number of decisions involving dopamine agonists, none of which came out of Nevada, which of course has legalized gambling and prostitution. How, if at all, this would affect the usefulness of “proximity to temptation” as an affirmative defense, who knows? But I thought it was an interesting bit of trivia.

Finally, in a number of the cases I looked at in preparing for this article, I couldn’t help but notice an interesting trend. Many plaintiffs alleged that as a consequence of using drugs with dopamine agonists, they developed hypersexual compulsions. In those same cases, there would usually be a spouse claiming loss of consortium. Go figure.