United States: Double Dose Of Delaware Summary Judgment

Last Updated: May 3 2019
Article by Eric Alexander

There will come a time when there is no such thing as the local radio station. Not only will transmission not occur via radio waves, but there will be nothing local about it. There also may be no banter from the DJ, short for "disc jockey"–a reference to placing flat, round pieces of plastic called records on a machine that spun them around and attracted sound through a needle. The songs or other content may just appear one after the other, perhaps interspersed with advertisements or some sort of pre-recorded public service announcements. Back in the day, however, when we used to select what we wanted to hear by turning a dial find the specific frequency (or amplitude) radio wave assigned to a station, the stations were local and the kitsch factor was high. There were lots of ads and giveaways. Focusing on the "classic rock" stations—probably now labeled as "oldies" or "album rock" stations—they had lots of gimmicks to make you think something special was happening when consecutive songs from the same bands were played. (They tended to be bands, not "artists," and there were very few songs "featuring" someone not in the band for 15-30 seconds, at least not that would be touted as a reason to listen the song. We digress.) There was a Two-fer Tuesday, where songs from perhaps Led Zeppelin would be played back-to-back. For stations that eschewed the Throwback Thursday that apparently is a thing now on social media, they might offer a Double-Shot Thursday, where songs from perhaps Led Zeppelin would be played back-to-back.

That was all an excruciatingly protracted way of saying that we are rolling out two decisions today from the same judge involving summary judgment on similar allegations about the same drug. They were even decided on same day, last Thursday. Were text effects available, the Thursday in the prior sentence might reverberate in some fancy way. After all that, the decisions were mercifully concise and one even cited back to the Trower decision discussed yesterday. (Yes, Trower was also decided last Thursday.)

The decisions in Green v. Janssen Pharmaceuticals, Inc., No. 1:15-cv-00401-RGA, 2019 WL 1567841 (D. Del. Apr. 11, 2019), and Hopkins v. Janssen Pharmaceuticals, Inc., No. 14-cv-01366-RGA, 2019 WL 1567840 (D. Del. Apr. 11, 2019), involved claims of gynecomastia from the pediatric use of Risperdal for a range of psychiatric conditions. We have written quite a bit about these claims in the past and the basic facts of these two cases should be familiar. Each plaintiff was prescribed and took Risperdal on and off over the course of several years, claimed to have developed gynecomastia as an adolescent, and then sued as an adult. Each plaintiff also proceeded under Delaware law and was down to just negligent warning and negligent misrepresentation claims by the time the court considered summary judgment. Delaware has the learned intermediary doctrine and requires proof that a different warning would have changes the prescribing decision. Pretty standard. However, Delaware does have a quirk of its law where a warning that is "inadequate as a matter of law" means the learned intermediary doctrine does not apply. We will bite our proverbial tongue on that and just turn to how it played out in these cases.

The analysis of the issue was in Green, where plaintiff contended that his expert's opinion and some testimony of one of defendant's employees established inadequacy as a matter of law. Reviewing the issue as if plaintiff had cross-moved for summary judgment, the court determined that the issue of inadequacy was genuinely disputed. Among other things, the condition was discussed in the labeling in place for most of the time that plaintiff was prescribed the drug by ten different doctors and defendant's FDA expert opined that the label was adequate and disputed the opinions of plaintiff's expert. That was enough to turn to the issue of proximate cause.

For whatever reason, the plaintiff in Green deposed only one of his ten prescribing physicians. That physician testified that "additional information on the risks associated with Risperdal would not have impacted his decision to prescribe Plaintiff the drug." While we might have preferred that the court had made it clear in this situation that plaintiff needed favorable testimony from all the prescribing physicians (or at least those whose prescriptions were reliably linked to development of the gynecomastia), this short analysis was enough to get rid of the remaining claims in Green.

The analysis in Hopkins was even shorter. He did not depose any of his physicians, so he had nothing on proximate cause, which was an issue because he had offered the same evidence on inadequacy as a matter of law rejected in Green. Hopkins had two more problems. He took the generic drug, not the drug made by the company he sued. Because there is no innovator liability in Delaware, as affirmed earlier that same day, that also meant summary judgment. He also did not have evidence that he actually had gynecomastia, let alone proof of gynecomastia from specific drugs that he took. Lacking a diagnosis or case-specific expert, Hopkins tried to rely on a generic expert who said that the use of the drug in general can cause gynecomastia sometimes. The court did not have to dwell long in rejecting that.

Collectively, Green and Hopkins illustrate that it should not take long decisions to get rid of the claims of plaintiffs who did not muster basic evidence and hoped to get past summary judgment anyway. Whether this court's decisions signal a turning of the tables in Risperdal litigation remains to be seen.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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