Law Office Management
Aug. 2, 2008
A Woozy Wait
After the Riegel v. Medronic medical-devices decision, litigators are on hold while the U.S. Supreme Court considers a pharma case, Wyeth v. Levine.
Like most trial lawyers, Bijan Esfandiari is generally not known for his cautiousness. But a major prescription-drug case on the U.S. Supreme Court's docket this fall is giving this 31-year-old Los Angeles attorney pause.
Suits against medical-device manufacturers already are barred in certain instances, since the high court's February ruling in Riegel v. Medtronic (128 S. Ct. 999 (2008)). And if the justices take a similarly broad approach next session in Wyeth v. Levine (128 S. Ct. 1118 (cert. granted Jan. 18, 2008)), it could mean the end of litigation against drug companies as we know it--and of a lucrative field for plaintiffs lawyers.
"The legal climate is uncertain," concedes Esfandiari, a litigator with Baum, Hedlund, Aristei & Goldman.
In Riegel, the Court ruled 8-1 that the medical-device company was immune from a suit brought in New York over one of its devices because the Food and Drug Administration (FDA) had approved the device. Similarly, Levine will rest on the question of the extent to which federal law preempts state law.
Consequently, Esfandiari is now slow-walking some of his firm's current drug cases. In anticipation of Levine, he got a stay in one Central District case over an antidepressant and has requests pending for a few others. Baum Hedlund also plans to seek stays in several other cases as it awaits the Supreme Court's ruling.
Especially for plaintiffs lawyers working on a contingency-fee basis, Esfandiari says, it makes sense not to proceed until Levine is decided. "It's your dollar in play," he says. "The biggest fear is if we prevail on preemption [at the district court] and then the Supreme Court goes the other way."
Mark E. Burton Jr., 38, a partner at Hersh & Hersh in San Francisco, says he is "cautiously optimistic" that the Supreme Court will not side with the drug companies in Levine. Even so, some of his drug cases have been stayed pending the decision, and he says trial lawyers in general are taking fewer drug cases.
But not all are playing it safe. Lori E. Andrus, 36, a partner at San Francisco's Andrus, Liberty & Anderson, is proceeding with her prescription-drug litigation, stressing that there is no guarantee that the Court will issue a broad interpretation of preemption in Levine. Riegel, she points out, affects only medical devices that receive pre-market approval through the FDA--although the technologically advanced and risk-fraught devices are the very ones most likely to attract litigation.
Andrus thinks the defense bar is reading far too much into Riegel, erroneously "sending a message to plaintiffs that our days are numbered." In fact, she notes, the Supreme Court was deadlocked 44 (with one recusal) on the preemption issue in its March ruling in Warner-Lambert v. Kent (128 S. Ct. 1168 (2008)). That decision allowed a series of lawsuits against the Warner-Lambert drug company to proceed.
"The Court is not of one mind," Andrus says.
And even if the Court favors drug companies with a vote for preemption in Levine this fall, trial lawyers are hopeful that the Democratic-led Congress--aided, perhaps, by a Democrat in the White House next year--would swiftly counteract the ruling with legislation.
Until the Court issues its decision, however, many trial lawyers aren't taking any chances. As Burton says, "A lot of people are hedging right now."
Usman Baporia
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