Friday Links

Way, way back in the early 1970’s, there was once a television program called “The Young Lawyers,” which starred Lee J. Cobb, Judy Pace, and Zalman King (who passed away earlier this month at age 69). At some point during the show’s run, Dell Comics published the comic book above dedicated to the program. Its tagline for this issue reads: “When a bomber strikes, who is to blame?” We would suggest that the person to blame is likely the bomber. (Maybe they young lawyers never took Crim Law.).

Max Kennerly of the Litigation & Trial law blog offers this great post entitled “The Real Risks of Writing a Legal Blog.”

As you know, we here at Abnormal Use go to great lengths to chronicle the hot coffee litigation.  Some have accused of us of trying to relitigate a long dead issue (or is it beat a dead horse?).  However, it seems these issues may be more relevant than even we realized.  Just last week, at the local Starbucks drive-thru right here in our own Greenville, South Carolina, we overheard:  “Give me a Venti Americano, two Splendas, and . . . make it extra hot!  I mean, really hot!” Contributory negligence, perhaps? Assumption of risk?  Or something more sinister? Perhaps this zealous customer was seeking a golden payday.  Stay tuned to Abnormal Use to find out.

Here we go again!  According to this report by Jon Campisi at Legal News Line, “[a] Philadelphia woman who claims she became burned by a hot cup of coffee at local Burger King is suing the fast food giant in state court.”  The incident occurred on Valentine’s Day 2010, two  years ago this week, and the Plaintiff alleges that “[t]he lid had not been properly placed on the cup, causing the hot coffee to spill on [the Plaintiff]” when the fast food employee handed it to her at the drive thru.  We’ll be following this one.

Hey, deponents, don’t call your 88 year old grandmother “The Creeper” at your deposition.  Okay? Thanks.

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.

Third Circuit Upholds Application of “Negligence-Type Concepts” in Products Liability Cases

Earlier this month, on July 12, the Third Circuit upheld a jury’s verdict in favor of a manufacturer of bicycle helmets, and in doing so, affirmed the lower court’s application of a relatively new interpretation of product liability law.  Covell v. Bell Sports, Inc., No. 10–3860, —F.3d—, 2011 WL 2690396 (3d Cir. July 12,  2011). The case was filed by the parents of a 36-year-old schoolteacher who sustained serious brain injuries when he was hit by a car while bicycling to work in 2007.  The parents, in their capacity as guardians, filed suit against the manufacturer of their son’s helmet, alleging that it was defectively designed and lacked adequate warnings.  At trial, over the plaintiffs’ “strident objections,” the court permitted the helmet manufacturer to introduce expert testimony regarding the Consumer Product Safety Commission’s “Safety Standard for Bicycle Helmets.” In turn, the plaintiffs responded with their own expert regarding the CPSC safety standard.  Both experts testified at trial that the CPSC standard forms the “starting point” for any bicycle helmet design, and both agreed that the helmet at issue satisfied CPSC standards in all respects.  At the conclusion of trial, the court instructed the jury that in determining whether the helmet was defective, it could consider evidence of standards in the industry, including the CPSC standards.

The Third Circuit recognized the “core conflict” that exists within provisions of the “strict liability regime” of the Restatement (Second) of Torts: that courts are to ignore evidence that the seller “exercised all possible care in the preparation and sale of his product,” yet imposes liability only for products that are “unreasonably dangerous.”  It is, of course, often impossible for a jury to determine whether a product is “unreasonably dangerous” without referencing evidence that the seller did or did not exercise “care in the preparation” of its product. Ultimately, the court held that federal courts applying Pennsylvania law are to use the Restatement (Third) of Torts to guide both their decisions regarding the admittance of evidence and in their usage of jury instructions.  In this regard, it allows for a more negligence-friendly products liability regime than previously recognized in Pennsylvania, where juries may properly consider industry standards and government regulations.  This is certainly a defense-friendly analysis and decision.  Short of doing away with strict liability laws in their entirety, incorporating more negligence-type concepts into the analysis of manufacturer liability is a positive approach.

Emily Pincow of the Product Liability Monitor blog has additional thoughts on the case here.

Sweet Coffee: The Next Great Documentary?

Noted Plaintiff’s attorney turned filmmaker Susan Saladoff has created quite a buzz with her documentary, Hot Coffee. The anti-tort reform film, which derives its title from the infamous McDonald’s hot coffee case, premiered at the prestigious Sundance film festival and will air on HBO later this month.  As if Sundance and HBO were not enough, Hot Coffee has even been given its own feature role here on Abnormal Use.  With all of this success, how will Saladoff ever be able to find another frivolous misunderstood case  to use to cash-in document?  Thankfully, we know that Saladoff reads Abnormal Use, and we have discovered the subject-matter for the perfect Hot Coffee sequel. Here’s our free advice.

A Pennsylvania woman has sued Dunkin’ Donuts for personal injuries after drinking a cup of coffee purchased from one of the chain’s Philadelphia locations.  According to the complaint, the woman ordered coffee with artificial sweetener, but the Dunkin’ Donuts employee mistakenly used sugar.  The sugar mix-up allegedly caused the lady to enter into diabetic shock.  As a result, she has had to alter her diabetes medication and has “sustained a loss of enjoyment of life.”

With Hot Coffee, Saladoff formulated the perfect equation for the anti-tort reform documentary:  sympathetic plaintiff + big corporation + morning beverage = success.  This recent action fits perfectly within the criteria.

Sympathetic Plaintiff

The first rule of film-making is that audiences can be hypnotized by conflict faced by marginalized characters.  Instead of an elderly woman as in the McDonald’s case, this case features a medication-dependent diabetic.  Similar to their reaction to children and the elderly, audiences will naturally sympathize with people having pre-existing conditions.  Certainly each of Dunkin’ Donuts employees should have known the medical history of each patron prior to filling an order.  At the very least, they should have been instructed that each customer is a potential egg shell plaintiff and that the substitution of sugar for artificial sweetener could result in the “loss of enjoyment of life.”

Big Corporation

The second rule of film-making is that when given the choice between David and Goliath, audiences choose David.  In Hot Coffee, Saladoff was able to garner greater sympathy for Stella Liebeck by suggesting that McDonald’s flexed its billion-dollar muscles and engaged in a public disinformation campaign to alter the public perception of the lawsuit.  While McDonald’s has not meaningfully commented on the hot coffee case since the 1990’s, Dunkin’ Donuts has already made a public statement.  According to the report, Dunkin’ Donuts’ legal liaison in the Philadelphia-region said:

[W]e encounter thousands and thousands of customers on a daily basis.  We don’t provide a customer with anything they don’t request.  If they request a medium coffee, they will get a medium coffee.  If you fail to request a sugar substitute , we can’t read your mind.  We sell doughnuts, not crystal balls.

It is so much easier to mischaracterize the statements of a corporate representative when he or she has the nerve to suggest the plaintiff was contributorily negligent.  By using this case, Saladoff wouldn’t even have to undertake her own disinformation campaign in response.

Morning Beverage

The final rule of film-making must be the inclusion of a standard morning beverage, preferably one which is consumed without incident every day for years before causing a problem. Unfortunately, after Saladoff’s documentary, hot coffee cases have now run their course.  Those suits now happen all the time because restaurants still haven’t learned that their patrons prefer their coffee to be served cold.  But people have now grown tired of these stories.

Saladoff needs something new, something that will really get an audience fired up.  Since we here at Abnormal Use are unaware of any defective orange juice cases, sweet coffee will have to do the trick.  Like the dangers of hot coffee, it is obviously foreseeable that the substitution of one teaspoon of sugar in a cup of coffee can have dire consequences.  We suggest ignoring any evidence that the plaintiff negligently forgot to request artificial sweetener.  These types of omissions happen all the time in documentary editing.  After all, you can only put so much information in a film before it becomes the next War and Peace.

After a careful review of the recent Dunkin’ Donuts action, we find that with a little exaggeration careful editing, the foundation for a successful documentary has been laid.  Because we here at Abnormal Use have so enjoyed Saladoff’s contributions to our blawg, we would like to return the favor and name her next great documentary – Sweet Coffee:  Why Didn’t I Just Mix It Myself?

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.

Risk-Utility Analysis Applied in Favor of Subrogee

On defendant manufacturer’s motion for summary judgment, the Middle District of Pennsylvania recently applied the risk-utility analysis, finding in favor of Plaintiff, Donegal Mutual Insurance Company (“Donegal“), subrogee of its insured’s claim that a electric clothes dryer manufactured by Electrolux North American (“Electrolux“) was defective. Donegal Mut. Ins. Co. v. Electrolux N. Am., 2010 WL 3169291 (M.D. Penn. Aug. 10, 2010). In November 2006, Donegal’s insured’s house caught fire from a dryer manufactured by Electrolux 10 years earlier due to its bearing assembly design. Donegal instituted a subrogation action against Electrolux, asserting causes of action for negligence, strict liability, and warranty/breach of contract. Electrolux moved for summary judgment on Donegal’s strict liability claim.

On a motion for summary judgment, a court in Pennsylvania first determines “whether the evidence is sufficient for purposes of the threshold risk-utility analysis, to conclude as a matter of law that the product was not unreasonably dangerous.” Id. (citing Surace v. Caterpillar, Inc. , 111 F.3d 1039, 1044 (3d Cir. 1997). If the analysis favors the manufacturer, the product is not unreasonably dangerous and the the plaintiff’s claim does not go to a jury.

Judge Yvette Kane was meticulous in her analysis of each of the 7 factors of the risk-utility test, finding six of the seven factors weighted in favor of plaintiff and against the manufacturer. First, the parties conceded that the clothes dryer had a high utility to its users — only factor in favor of Electrolux. Second, the court was not able to evaluate the statistical rate of injury because Electrolux had not provided it with the number of units it sold similar to the one at issue. Therefore, the court found in favor of the plaintiff on the second factor due to the extent of injury a fire from a dryer could cause. Third, the court found that the bearing assembly design that caused the fire at issue could have been designed safer, finding in favor of plaintiff on this factor. Fourth, the court found in favor of plaintiff because Electrolux had already replaced the bearing assembly design with a different assembly in its newer models. Fifth, the court found that an ordinary user could not avoid the danger posed by an internal mechanism that could cause fires. Therefore, this factor went in favor of plaintiff. Sixth, similar to the fifth factor, the court found insufficient warning of the dangerous condition to an ordinary consumer. Finally, the court found the burden of spreading loss is better placed on the manufacturer.

As a result of the court’s analysis, it found that the risk of harm from the bearing assembly design outweighed its social utility and denied Electrolux’s motion for summary judgment. It appears that this type of test and analysis will often go in favor of plaintiff when the “defect” is an internal mechanism that could have been designed differently and the manufacturer gave no notice to the consumer. Further, the last element, spreading the loss, will almost always go in favor of an plaintiff versus manufacturer. Clearly, manufacturers moving for summary judgment in jurisdictions applying this test face a distinct disadvantage.

Pennsylvania ATV Case Highlights the Difference Between Misuse and Unintended Use in Products Cases

In Smith v. Yamaha Motor Corporation, U.S.A., — A.2d —, 2010 WL 3239476 (Pa. Super. Ct. Aug. 18, 2010), an appeals court in Pennsylvania considered whether a trial court erred in granting summary judgment to Yamaha on claims of negligence and strict liability, and whether it erred by striking the report of Plaintiffs’ accident reconstruction expert in its entirety.

On September 23, 1999, Jeffrey Smith, an experienced ATV rider, was attempting to back his Yamaha ATV, more specifically a 1987 Yamaha Big Bear 350, down a hill when his foot slipped and struck the right-rear fender of the ATV. The fender collapsed, and his right leg became trapped between the frame and the wheel. The ATV then rolled back over Mr. Smith, causing him to suffer severe injuries that left him disabled and disfigured. According to the website, this ATV was Yamaha’s first 4×4 ATV:

Mr. Smith and his wife, Susan, sued Yamaha under theories of strict liability, negligence, and breach of warranty, and claimed that the rear fender and instrument panel were defective. Yamaha answered, and asserted that Mr. Smith was contributorily negligent by trying to back the ATV down the hill, and by consuming alcohol (Mr. Smith’s BAC was 75% below the legal limit) and taking drugs (he was ingesting prescription OxyContin for a degenerative back condition).
Yamaha’s motion for summary judgment as to Plaintiffs’ strict liability claims was granted on the grounds that Plaintiff was misusing the ATV at the time of the accident because the ATV manual, which Plaintiff acknowledged receiving, warned against consuming drugs or alcohol in connection with using the ATV, and also counseled against letting the ATV roll backwards on a hill. By doing all of these things, Yamaha argued, Mr. Smith was “operating the vehicle in an unintended manner” (emphasis added). Yamaha’s motion for summary judgment as to Plaintiffs’ claims for negligence was also granted, as was its motion to strike the expert report of Plaintiffs’ accident reconstruction expert, because it raised a new theory of recovery after the statute of limitations had expired.
The appellate court reversed the trial court’s striking of the expert’s report in its entirety, holding that even though part of the report did raise a new recovery theory following the statute of limitation’s expiration, the remainder of the report did not and, therefore, the offending portion should merely have been redacted. The expert, therefore, should have been allowed to propound his theories about the defectiveness of the design of the fender and the availability of alternative designs that would have prevented Plaintiff’s injuries.
With this part of the expert’s report back in evidence, Plaintiffs’ claims under the negligence theory were once again viable. The expert was allowed to opine that Yamaha’s design did not meet the state of the art at the time of design and manufacture of ATVs. The appellate court, therefore, reversed the trial court’s decision to grant Yamaha’s summary judgment motion on Plaintiffs’ negligence claims.
The most instructive portion of this decision, however, was the appellate court’s decision to reverse the granting of Yamaha’s motion for summary judgment on Plaintiffs’ strict liability claims. In doing so, the court explained that “the trial court conflated the doctrine of unintended use with the concept of misuse” (emphasis added). According to the appellate court, Plaintiff was indeed operating the ATV for its intended use–off-road riding. What he may have been doing, however, was misusing the vehicle by operating it in a manner not intended by the manufacturer–backwards and potentially under the influence of drugs and alcohol. Finally:

It is well-settled that a plaintiff’s misuse of a product cannot be grounds for granting summary judgment in favor of the manufacturer under a design defect theory unless it is established that the misuse solely caused the accident while the design defect did not contribute to it.

Because the evidence of Plaintiff’s riding on the date of the accident went to the issue of misuse, rather than unintended use, and because there was evidence that a design defect may have caused or at least contributed to the accident, the trial court’s grant of summary judgment was reversed.

Foreseeable Misuse in Pennsylvania

Does foreseeable misuse have a place in determining liability in a products liability action? In Pennsylvania, it doesn’t. Recently, the Third Circuit, applying Pennsylvania law, rejected a consumer’s argument that the meaning of “intended use” included all uses “reasonably foreseeable” by the manufacturer. Jacobson v. BMW of North America, LLC, No. 08-4322, 2010 WL 1499809 (3d Cir. Mar. 23, 2010).

In 1999, Robert Jacobson (“Jacobson”) went to do errands with his two sons, Ryan and Christopher, in his BMW 325i. Jacobson stopped at a convenience store, parked, placed the gear shift in park, turned off the engine, engaged the emergency brake, removed the keys from the ignition, and exited the vehicle, leaving his sons inside. Ryan, playing with the gear shift, placed the vehicle in reverse or neutral and the vehicle began to roll. Christopher exited the vehicle without injury. However, Ryan sustained severe injuries as a result of his exit from the vehicle. Thereafter, Jacobson filed a action against BMW alleging that it should have had a device in place that would have prevented the car from shifting out of park.

At trial, the jury returned a verdict in favor of BMW. Jacobson filed a motion for a new trial, which was denied, and filed the present appeal. Jacobson raised four errors on appeal, including an argument that the court gave an erroneous jury instruction on the definition of “design defect.”

Under Pennsylvania law, “a manufacturer can be deemed liable only for harm that occurs in connection with a product’s intended use by an intended user.” On appeal Jacobson cited to two Third Circuit opinions, Pacheco v. The Coats Co., 26 F.3d 418, 422 (3d Cir. 1994) and Sheldon v. West Bend Equipment Corp., 718 F.2d 603, 608 (3d Cir. 1983) for the proposition that “intended use” under Pennsylvania law includes all uses “reasonably foreseeable by the manufacturer.” The Court disagreed and held that this proposition had been expressly rejected by the Pennsylvania Supreme Court in Pa. Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 898 A.2d 590 (Pa. 2006). The Court found no error in the underlying court’s decision to omit “foreseeability” from its jury instruction on “intended use.”

This case seems to represent the current state of Pennsylvania law; however, practitioners and courts alike recognize the potential for change. As recognized by the Eastern District of Pennsylvania in July 2009, McGonigal v. Sears Roebuck and Co., No. 07-CV-4115, 2009 WL 2137210 (E.D. Pa. Jul. 16, 2009), Pennsylvania courts note that “negligence concepts should not be imported into strict liability law.” However, the McGonigal court also stated that “[t]he role of negligence concepts in strict liability doctrine in Pennsylvania features numerous unsettled issue of law.” The Supreme Court of Pennsylvania was recently afforded the opportunity to clarify strict liability law in Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228 (Pa. 2009) — as recognized by Drug and Device Law blog back in April 2009 — however, the appeal was dismissed as been “improvidently granted.” As a result, Pennsylvania law still contains inconsistencies with the hope for clarification someday.

More than 10 Years Later, Drug Settlement Litigation is Still Going

On November 19, 1999, American Home Products Corporation, now known as Wyeth, entered into a settlement agreement with class members of a diet drug nationwide class action, creating a settlement trust to pay claims of class members that were injured by ingesting certain diet drugs. On August 28, 2000, the Eastern District of Pennsylvania entered an order certifying and approving the nationwide settlement class. Now, more than 10 years later, there is still litigation surrounding claimants seeking benefits under this settlement agreement.

In fact, in the past two weeks, on April 6, 2010 and April 13, 2010, the Eastern District of Pennsylvania and Third Circuit, respectively, upheld the decisions by the settlement trust to deny benefits. In re Diet Drugs Products Liability Litigation, No. 99-20593, 2010 WL 1404624 (E.D. Pa. Apr. 6, 2010); In re Diet Drugs Products Liability Litigation, No. 09-2424, 2010 WL 1473752 (3d Cir. Apr. 14, 2010).

The decision by the Eastern District of Pennsylvania on April 6, 2010 involved claimant Betty Brown-Riddle. In order to seek benefits from the trust, Brown-Riddle had to submit evidence that she she suffered from “moderate aortic regurgitation,” as set forth in the Settlement Agreement. Brown-Riddle submitted a statement by her treating physician that she suffered from “mild to moderate aortic insufficiency.” Thereafter, the trust forwarded Brown-Riddle’s claim for review. The reviewing physician found that there was no reasonable medical basis for her treating physician’s finding that she suffered from moderate aortic regurgitation. As a result, the trust denied her claim and she sought review. After a series of administrative reviews pursuant to the Settlement Agreement, Brown-Riddle’s found its way into the district court for review.

The Court found that Brown-Riddle merely disagreed with the reviewing physician’s determination that she lacked a medical basis for her claim. She failed to identify or substantiate any specific errors and rested on her physician’s “check-the-box diagnoses.” The Court affirmed the decision of the trust denying benefits.

Similar to the above case, on April 13, 2010, the Third Circuit reviewed a claim of a class member that had been denied benefits. In this case, the Court affirmed the decision of the district court that the claimant did not provide adequate proof of diet drug ingestion required to support her claim because her supporting affidavits provided a dispense date when the drugs were off the market and stated dosages that were inconsistent with the dosages at which the drugs were issued. Further, addressing an argument by claimant, the Court found that the form she had to fill out in connection with her claim for benefits did not constitute a contract for benefits.

These decisions by the the Eastern District of Pennsylvania and the Third Circuit show that even when a mass class action is settled, litigation continues and our courts are continually asked to evaluate expert evidence as it would in a case of traditional posture. Plaintiffs in these types of cases are not off the hook of providing expert testimony. It will be interesting to note when litigation surrounding this class settlement ends — 10 more years, maybe 20.

Third Restatement Comes In First in Pennsylvania

Over the course of the past year, I have become quite accustomed to the federal government telling me that it knows what is best for me, regardless of what actually may be best for me. Depending on which side of the aisle you stand, you may revel in the audacity of hope, or just simply marvel at the audacity of your political opponents. But we need not sink into the ether of partisanship; not this day – not when there is jurisprudence to be discussed. As will be seen in the coming months, in our land of multiple sovereigns, the judiciary too walks a delicate line among competing interests. As an example of that trend, the Eastern District of Pennsylvania recently authored an opinion illustrating the unique nature of our system.

In Hoffman v. Paper Converting Machine Co. , No. 08-3012, 2010 WL 845984 (E.D. Pa. March 3, 2010), the Plaintiff injured himself when using a printing press, amputating fingers on his right hand. He sued in federal court. The defendants moved for summary judgment. The initial issue in the decision relates to the proper substantive law for decision. Even though a federal court sitting in diversity applies substantive state law, the federal court may still be forced to speculate what a state court might do when state law is nebulous on the issue at hand. The district court, per the case discussed below, ruled that the Third Restatement was the standard of decision, and it decided various issues raised in the summary judgment motion.

In Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009) [PDF], the Third Circuit was confronted with the issue of whether Pennsylvania courts would adopt the principles of the Third Restatement of Torts. The Third Circuit had some pretty strong indications (a pending case before the Pennsylvania Supreme Court) that the Pennsylvania Supreme Court was going to move to the liability scheme found in the Third Restatement, so the Third Circuit made that prediction. It turned out that the Pennsylvania Supreme Court dismissed the pending appeal as improvidently granted, and, therefore, Pennsylvania, for the time being, still adheres to the Second Restatement.

In Hoffman, the Plaintiff preferred the Second Restatement, while Defendants sought the application of the Third. Deciding between the Second and Third Restatement is a big decision, since each presents a different definition of a product defect, and in a products liability action, the definition of defect is likely to come up at some point in the proceedings. But there really was no decision to be made:

[A] district court is bound by Third Circuit precedent on state law issues unless a subsequent[] decision by the highest state court diverges from Third Circuit precedent.

Hoffman at *3. The district court ruled that the Third Restatement was the standard of decision, and it decided the various issues related to the summary judgment motion, granting it in part and denying it in part.

Defendants, pay attention. You can now do some forum shopping of your own, deciding whether to stay in state court, or remove to federal court, depending on which liability scheme is favorable to you. If you decide to remove, don’t forget about Iqbal and Twombley. As much as I would love to pontificate a potential law school exam question on this, I think I’ll just make the point that, in the short term, plaintiffs in Pennsylvania will have to pay attention to their products cases (including potential CAFA jurisdiction) to ensure that they get to apply Pennsylvania substantive law, at least in the short term, or in the alternative, prepare their complaints to survive a motion to dismiss under either standard. For the time being, in federal court, Pennsylvania state law is not really Pennsylvania state law.