[Drug and Device Law] Silver Linings Casebook: Getting Happy with a Bad Discovery Ruling
You have to hand it to the Academy of Motion Pictures. By expanding the number of Best Picture nominees, it ended up selling lots more tickets. Like many people we know, we try to see all the Best Picture nominees so as to earn the right to grouse about the Academy's inevitable injustices (e.g., Oliver! over 2001?! Gandhi over ET?!! Art Carney over Jack Nicholson, Al Pacino, and Dustin Hoffman?!!!). In past years, that meant seeing five films. This year, we need to see nine. So that's almost twice as many movie tickets, popcorns, nachos, snowcaps, and slushees. Last weekend we saw Silver Linings Playbook. It is weird that it took us so long, considering the Philly-centric nature of the story. Brad Cooper plays a bipolar patient who has trouble coping with life, especially the disintegration of his marriage. He keeps telling himself that he needs to find the silver linings in tough situations. His father seems to have a serious case of OCD, especially when it comes to rooting for and betting on the Philadelphia Eagles. (If one wants to make the point that the enterprise of life is rescuing the good bits from a failure pile, it's hard to come up with a better metaphor than cheering for a Philadelphia sports team.) A psychiatrist tells the Cooper character that he needs a "strategy" (presumably that is the "Playbook" of the title) to pluck out the glories from the dismal parade of life's indignities. Nevertheless, it's not clear what sort of strategy would work – beyond, maybe, just being open to the possibility of happiness.
A week ago, we were watching one of our favorite sitcoms, Modern Family. For the first twenty or so minutes, it seemed like a whole lot of nothing. The episode was disappointing. It was flat. But it turned out that it was setting us up for a concluding couple of minutes that are as brilliant as anything we've seen in a while. Levitan et al served up a parody of the conclusion of The Godfather. See it for yourself here. More than a few of our lawyer buddies have a running gag about how the most valuable lessons for life and litigation are contained in The Godfather. What we learned from the Modern Family reenactment of The Godfather is that human cleverness is endless, a long set-up can prepare the way for a sublime punch line, that even in our dotage we can laugh ourselves to tears, and that Ty Burrell (again) can make us giddy with stonefaced genius. It sounds overblown and frivolous, but a tv show managed to amplify our delight in being alive.
For some reason, that excellent television show and excellent movie put us in mind of a New Yorker article we read many years ago about a corporate coach named Marshall Goldsmith. Companies invited Goldsmith to help executives who were smart, driven, and completely successful, save for the fact that they were utterly obnoxious. Goldsmith applied his modified Zen Buddhism to organizational dynamics and emerged with three rules: (1) Life is Good; (2) Be Happy Now; and (3) Let it Go. He was convinced that those three rules are the key to happiness. Stop complaining and, instead, appreciate how gorgeous existence is. Do not play the game of 'I'll be happy when' [e.g., when I get that promotion, when I make enough money, when I get that certain someone to love me back]. And if something wrong is done to you, or, perhaps more importantly, if you have done something you regret, learn from it, and then stop obsessing over it. To this day, we think more about that New Yorker article than any other we've read over the past (gulp) 35 years.
Armed with this wisdom and joy and openness, let's dance in the rain of dodgy legal analysis. The case is from the Pradaxa MDL, In re Pradaxa, 2013 U.S. Dist. LEXIS 7979 (S.D. Illinois January 18, 2013). The plaintiffs brought a product liability claim against Boehringer Ingelheim Pharmaceuticals, Inc. ("BIPI") relating to Pradaxa. As we all know, discovery in mass tort cases is a grim slog. There are way too many custodial files, way too many databases, and way too many things to do with this stuff, including reviews for responsiveness, privilege, and confidentiality. Even then, we haven't scratched the surface of tasks associated with this mountain of documents and terabytes. (De-duplication, anyone?) Responding to this discovery costs a company more money than most civil litigation defendants must pay after being found liable -- yet when we talk about mass tort defendants responding to discovery, we are talking about defendants who have not yet been found liable for anything. The American discovery regime is, not to put too fine a point on it, insane.
Now consider how much more insane it gets when the plaintiff asks for documents relating to drugs that are not at issue in the litigation. The Pradaxa MDL plaintiffs asked for documents relating to any lawsuit alleging that BIPI engaged in off-label promotion of any medicine or that BIPI paid kickbacks to induce doctors to prescribe any BIPI medicine. The plaintiffs also asked BIPI to identify witnesses relating to such lawsuits, and employees who participated in the alleged wrongful activities. When the plaintiffs inquired about earlier lawsuits, they were focusing on a qui tam suit alleging off-label marketing of four products, none of them Pradaxa. As part of the settlement of that qui tam action, BIPI entered into a Corporate Integrity Agreement ("CIA"). That CIA governed BIPI's conduct as it relates to all of BIPI's drugs, including Pradaxa.
BIPI objected to the non-Pradaxa discovery requests on grounds of relevance and burden. That is not surprising in the least. Nor are the grounds asserted by BIPI surprising: (a) Pradaxa is the only drug at issue in the Pradaxa MDL; (b) the sought-for discovery mostly antedates the conduct at issue in the Pradaxa litigation; and (c) obtaining the non-Pradaxa information would "impose a great expense and an undue burden." 2013 U.S. Dist. LEXIS 7979 at *9. The plaintiffs, you will be shocked to learn, disagreed. They argued that the non-Pradaxa materials might lead to other acts evidence admissible under Fed. R. Evid. 404(b), that overpromotion was in fact at issue in the Pradaxa MDL, that impeachment ammo might surface, and that evidence of improper conduct would be relevant on the issue of punitive damages.
We are displeased to report that Chief Judge Herndon bought more arguments from the plaintiffs than the defendant. The court begins by observing how "federal discovery rules are liberal in order to assist in the preparation for trial and settlement of litigated disputes." Id. at * 11-12. Sometimes the beginning gives you a clear idea of the end. Think of Reservoir Dogs. Or Citizen Kane. Sometimes you just know you're not headed for a happy ending. In this case, the unhappy ending is the virtual disappearance of any notion of proportionality in discovery. Okay, so the rules of discovery are liberal. Boy, are they ever liberal. But they are not limitless ... are they? The court cites Fed. R. 26(b)(1). Remember that.
The court reads the Pradaxa MDL complaint to assert "allegations related to the manner in which Pradaxa was marketed." Id. at * 13. Then here's the kicker: "It is entirely possible that the marketing policies and strategies at issue in the qui tam action extended to BIPI's marketing of Pradaxa." Id. at * 15. Later, in addressing the issue of undue burden, the court ... well, the court does not really seem to care about that issue very much. First, the court "finds that this evidence is extremely probative." Id. at *19. Really? That information the relevance of which is "entirely possible"? Anyway, that is not a burden point. What the court does say about burden is that the "identity of witnesses and documentation sought is not that extensive in relative terms." Id. Sorry, but that conclusion (and it really is nothing more than a conclusion; there isn't even a smidgen of factual support) seems profoundly wrong. The information relating to the earlier lawsuit may be, as the court says, "obtainable," but we'd make a wager bigger than any wager the DeNiro character makes in Silver Linings Playbook that production of those materials will be massive and expensive. What are the "relative terms" that the court alludes to? Relative to an ordinary case? Relative to the rest of the massive production in the case? Relative to all the paper and data in the world? Relative to our nation's GDP?
Remember when we mentioned how the court mentioned Rule 26(b)(1)? What about 26(b)(2) (Limitations on Frequency and Extent) or 26(g)(1)(B)(iii) (signing a request for discovery is a certification that the discovery sought is "neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action")? We do not see how the non-Pradaxa discovery requests satisfy a rigorous application of the benefit vs. burden balancing test. Yes, as any former federal prosecutor will tell you, Rule 404(b) is a rule of inclusion not exclusion. But "other acts" evidence is usually fairly unnecessary, tangential stuff and it is still hemmed in by Rule 403 (undue prejudice). Accordingly, if production of the 404(b) material involves significant time, effort, and expense (and please do not ignore the expense issue just because the defendant is a large corporation, because that is not part of the balancing test nor should it be), then we think the sideshow of other acts evidence should be shut down.
There is a scene in Silver Linings Playbook where Cooper, disgusted with the unhappy ending in A Farewell to Arms, heaves the book through the bedroom window. Hemingway's book streaks through the night and plops on the middle of an Upper Darby street. It lays there, no doubt stunned at the insult. Poor thing. It's not such a bad book. We were tempted to treat the Pradaxa opinion with similar belligerence. But it is only six pages long, so it would merely bounce off our office window. Then we thought about Silver Linings. And we thought about laughter. And we thought about Marshall Goldsmith and his three rules. Is there a way to fend off our unhappy feelings about the batty discovery ruling in Pradaxa?
There are a couple of things. We've been on panels with Chief Judge Herndon and we like and respect him. He has a good sense of humor. We are not saying that the Pradaxa opinion is a joke (wishful thinking, that), but we should pay attention to the nice parts of the opinion, especially understanding how difficult and enervating it is to resolve discovery disputes. There are some things in the opinion you might even want to cite in the face of overreaching plaintiffs. In seeking a protective order, BIPI attached a sealed document. Ever the opportunists, the plaintiffs requested that the document be unsealed. The court denied the plaintiffs' motion without breaking a sweat. Id. at * 12. The court also narrowed the non-Pradaxa discovery by timeframe -- it had to be 1990 or later. Not great, but it's something. The court also did not get to the plaintiffs' punitive damages justification for the discovery, so we dodged a bad law bullet there.
Life is still good. In our experience, when plaintiffs get broad-ranging, additional discovery of things that should not matter, the things discovered seldom help their case much. Meanwhile, plaintiff-discovery inevitably reveals that a huge chunk of the MDL inventory is pure, unmitigated junk. Can we be happy now? Of course we can (though we are still grieving over that last episode of Downton Abbey). A bad discovery ruling does not diminish the delight we experience from a job that surrounds us with smart engaging people, or from the Drug and Device Law Son bringing home an A on his latest French test, or from a praline dessert we cannot stop thinking about. Can we let the Pradaxa ruling go? Sure. It is annoying and wrong, but it is, "in relative terms," a minor skirmish. There is more day to dawn. We look forward to reporting on the silver lining.
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Posted By Steve McConnell to Drug and Device Law at 1/31/2013 03:57:00 PM --
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