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A Tactical Thought About Clark

By James M. Beck and Mark Herrmann

Bexis' firm was involved in the case discussed in this post. Sadly, that
means that you're subjected today to pure, unadulterated Herrmann.

As a defense lawyer, here's a hint that you're just not going to like
where things are headed: When six of the first seven pages of a
judge's decision in a civil case consist of a long block quote from a
criminal information to which your client previously pled guilty.
That's what happened in Clark v. Pfizer, No. 1819, slip op. (Phila.
Ct. C.P. Mar. 12, 2008) (here's a link).

As defense lawyers, we naturally don't much like where this came out.
But we're not going to rant about the unfairness of the result in the case.

No, no.

Instead, for a change of pace, we're going to rant about the
unfairness of the process that led to the result.

The result was this: A Pennslyvania state-wide plaintiff class sought
to recover from Pfizer a refund of amounts paid to buy either
Neurontin or its generic equivalent, gabapentin, that was put to
off-label use. Pfizer moved for summary judgment as to all claims
brought by plaintiffs who did not buy Pfizer's name brand Neurontin,
but rather bought the generic equivalent manufactured by other
companies. The trial court denied Pfizer's motion as to the
misrepresentation, negligence, and negligence per se claims, holding
that Pfizer could be liable to plaintiffs for drugs the plaintiffs
bought not from Pfizer, but from other manufacturers.

Needless to say, if we were wearing the robes, the result would have
been a tad different.

But we're focusing today on a procedural -- actually, tactical -- aspect
of this case. As we said before, Herrmann had nothing to do with this
case. He thus speaks (even more than usual) from a position
unbiased by knowledge.

But, so far as he can tell, at the class certification stage, Pfizer
had moved to exclude generic gabapentin from the class definition.
The court chose not to make that change, but invited Pfizer to file a
motion for summary judgment as to all claims involving generic
gabapentin not manufactured by the defendants.

At that point, Pfizer presumably knew that every decision published in
the last 15 years went in its favor. Although there was no
Pennsylvania law on point, the Fourth Circuit had squarely held that a
name brand manufacturer of a prescription pharmaceutical could not be
held liable on a negligent misrepresentation claim for injuries
resulting from the use of a different manufacturer's generic form of
the name brand drug. Imposing a duty on the name brand manufacturer
would "stretch the concept of foreseeability too far." Foster v.
American Home Products Corp., 29 F.3d 165, 168 (4th Cir. 1994).
And Foster was not alone. After Foster was decided, "'every state and
federal district court which has confronted the issue of innovator
drug-manufacturer liability has either adopted the Foster reasoning or
cited Foster with approval.'" Goldych v. Eli Lilly, No. 5:04-CV-1477,
2006 WL 2038436 (N.D.N.Y. July 19, 2006) (quoting Colacicco v. Apotex,
432 F. Supp. 2d 514 (E.D. Pa. 2006)).

So imagine you're writing a brief for Pfizer. What do you do?
This looks like a lay-down. You've got the Fourth Circuit, seven
district courts, and three state courts saying you're right.

The plaintiffs have bupkus.

What brief do you file?

Typically, you file the shortest brief humanly possible. That makes
courts happy.

So here, you could file a little five or ten page ditty that says
basically: "Every case decided in the last 15 years says that I win.
No case decided in the last 15 years says that I lose. I should win."

No muss, no fuss, no angry judge leaning over the bench saying that
you killed trees unnecessarily by filing a long brief when a short one
would do.

Or you could file a brief that not only cited Foster and its endless
progeny, but also went into detail about the many policy reasons why
that line of cases is right, why analogies from other areas of law
support your position, and so on.

In other words, let the thunder roar.

Reasonable minds could differ over which course to take, but we
certainly wouldn't object to the first approach. You seem to have a
winner; all the law goes your way; and there's a pretty good chance
that a thunderous brief will tax the patience of a judge who's going
to rule your way anyway.

So you make that choice, and you get a decision like Clark, and you're
kicking yourself in the teeth.

Brevity wasn't the soul of wit, after all. If you'd only done it up a
little more, maybe you would have won the motion, or won a piece of
it, or given yourself more ammunition on appeal.

A lot of times we're asked to make tactical choices where the right
result is obvious.

But cases like Clark make clear that tactical choices can be awfully
tough, and no amount of thought will automatically lead you to the
right call.

Maybe the folks who teach legal writing can have their
students wrestle not just with the passive voice and nominalizations,
but this type of hard, real-life decision, too.

Full post as published by Drug and Device Law on April 02, 2008 (boomark / email).