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Rimbert - No Do-Overs

By James M. Beck and Mark Herrmann

We've discussed the New Mexico case of Rimbert v. Eli Lilly before twice: once concerning the learned intermediary rule, and a second time when the plaintiff's only expert got Daubertized.

Well, the third time's the charm. Rimbert has finally been dismissed. See the order here. Summary judgment was not really surprising after the plaintiff's only expert is excluded. What was is how hard the plaintiff still fought dismissal even after losing her expert.

Plaintiff's latest claim was that she should get a do-over; that is after, standing and falling with one expert, plaintiff should be allowed to take the case back to square zero with a replacement expert. But the plaintiff made it easy for the court to deny the motion. She hid the ball until the end - not even identifying who the "new" expert might be. Slip op. at 6. That, and the fact that the plaintiff had already played out the string until the end with her prior, excluded expert, led to denial of the motion to substitute a new expert. Slip op. at 7-8.

Moral of story: You can't go to the bullpen after the game is over.

Congratulations to Andy See at Shook Hardy for winning the case (and for passing along the news to us). Not asleep at the wheel, that one.

Full post as published by Drug and Device Law on November 17, 2009 (boomark / email).