For The Defense, October 2010 - DRI Today

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D R U G A N D M E D I C A L D E V I C Eence case,” provided the insights she hasgained for the best ways to defend a case onthe available science. Tamar was followed bySteve Glickstein of Kaye Scholer, who providedan in-depth presentation on the benefitsand pitfalls of seeking a change of venue.The morning session was concluded withan update on the law from Fritz Zimmer ofKing & Spalding on the increase in attackson the learned intermediary doctrine.Litigation risk assessments were expertlycovered by Sheila Anne Denton of BoehringerIngelheim and Robert Limbacherof Dechert, followed by a presentation byMark Hegarty of Shook, Hardy & Baconand Catherine Levitt of Astellas Pharmaceuticalson potential civil and criminalliability arising from clinical trials. Outstandingtrial lawyer Debra Pole from SidleyAustin followed the groundwork laidby Mark and Catherine to discuss the bestways to present clinical trial evidence to ajury. With another year of preemption decisionsbehind us following the Levine andRiegel decisions, Sandra Phillips of MorganLewis gave the audience an update on preemption.Bruce Parker of Venable then presenteda very creative program on how wemight use the history of unproven theoriesto help convince a jury that the hypothesesof plaintiff’s experts are not to be believed.The remainder of Friday’s programmingincluded outstanding presentations by VijayBondada of Pfizer and Carl Shapiro ofShapiro Rodarte & Forman on protectingyour client’s insurance coverage, by AnitaThomas of Nelson Mullins on “Hot Topics,”by Tony Vale of Pepper Hamilton on defendingconsumer protection claims, by JosephEvall of Orrick Harrington & Sutcliffe onwhat product liability lawyers should knowabout a client’s patents, by Fletcher Alfordof Gordon & Rees on innovator liability,and by John Steele on the ethical issues presentedby the virtual law firm.In keeping with tradition, the YoungLawyers Blockbuster program convenedon Thursday. Kim Clancy of Amgen andEmily Turner Landry of Baker Donelsonco-chaired the program that started withCaroline Tinsley of Baker Sterchi Cowden& Rice teaching the basic concepts of epidemiologyneeded in a drug case. Otherpresenters on topics geared for newer practitionersincluded Daniella DaCunzo ofHarris Beach (e- discovery), Diana Kotler14 n For The Defense n October 2010of Morris Polich & Purdy (medical devicerecalls), Brian Wahl of Bradley Arant BoultCummings (the treating doctor as yourally), and Perry Goldman of Actelion Pharmaceuticals,Nicole Maddox of BoehringerIngelheim and Sarah Padgitt of BaxterHealthcare (drug and device litigation inthe electronic era).This year we had to turn away peoplefrom our Diversity Luncheon, held on Fridayduring the seminar, as a sold-out crowdlistened to P.D. Villareal, senior vice president,global litigation at GlaxoSmithKline.P.D. gave a lively and thought- provokingpresentation entitled “Diversity and Inclusion,Not Just a ‘Nice to Have’ for ThoseRepresenting Corporate America.” The luncheonwas made possible by the underwritingof DLA Piper, GlaxoSmithKline,Gordon & Rees, Shook, Hardy & Bacon,Sidley Austin, and Womble Carlyle Sandridge& Rice.The days in San Francisco were reservedfor top- quality CLE programs but thenights were reserved for seeing old friendsand meeting new ones. DRI sponsorednightly receptions and there were a numberof stylish receptions co- sponsored bymany law firms. Our seminar is 48 hoursof high- energy education and networking.Besides our annual seminar there aremany other ways to become involved in thework of the committee. By the time this issueis published, our committee will havepresented its Young Lawyers Primer in Chicago,which is a day-long presentation ofbasic topics that advance the skills of someonenew to the practice of drug and medicaldevice litigation. Many outstanding triallawyers, most of whom are members of thecommittee’s steering committee, share theirknowledge and experience about epidemiology,deposing a plaintiff and a treatingdoctor, basic discovery, and other importanttopics. This program has proven to bean inexpensive way for firms to get theiryoung lawyers well-trained by experiencedlawyers from around the country.There are yet other ways you can contributeto the committee’s work. Our mostrecent webcast was held on June 15, 2010.The program, featuring Ann Byrd, DLAPiper, Allan Thoen, Pepper Hamilton, andJoe Leghorn, Nixon Peabody, focused onthe subject of “Combating New EnforcementApproaches to Pursue Off-Label Promotion.”The faculty was well- preparedand the program was well- received. Thecommittee is working on a topic for a fallwebcast. Contact Vivian Quinn at NixonPeabody at vquinn@nixonpeabody.com if youare interested in being on a program.Anne Talcott of Schwabe, Williamson& Wyatt is working hard as our new editorof the Rx for the Defense newsletter. Thespring issue was published in April utilizingDRI’s new electronic format. This alloweddirect publication via email to all committeemembers, rather than just by notice andreference to the webpage, as had been thecase in the past. The April issue included articleson medical device litigation in Canada,attacks on the learned intermediarydoctrine, changes to the much abused Minnesotastatute of limitations and an analysisof the causation requirement in statutoryconsumer fraud claims. We expect our nextissue to go out in late September of this year.In 2011 we will move from semi- annual toa quarterly publication cycle. If you are interestedin writing an article for the newsletter,contact Anne at atalcott@schwabe.com.Membership in the Drug and Medical DeviceCommittee currently stands at almost1,200. Tony Brazil of Morris Policy & Purdy,our membership chair, has done an admirablejob to encourage lawyers who practicein drug and medical device litigation to notonly join DRI, but to join our committee. Ifyou are not a member, please contact Tonyat abrazil@mpplaw.com.Ed Gerecke of Carlton Fields has coordinatedthe publication of the followingcollection of articles, which are dedicatedto drug and medical device litigation. Iam sure you will find all of the articlesto be outstanding. Ed can be reached ategerecke@carltonfields.com if you would liketo write an article for a future publication.We are very lucky to be able to say thatdrug and medical device litigation is ourprimary area of the practice of law. It givesus the opportunity to work with very interestingand talented people from all cornersof the globe in many different professionsand occupations, such as physicians andother health care providers, scientists,engineers, trial consultants, and of course,our clients. As members of the DRI Drugand Medical Device Committee, our goalis to enhance this experience for everyonewho wishes to participate.
D R U G A N D M E D I C A L D E V I C ESacking the MondayMorning QuarterbackBy Loren H. Brown,Daniel J. Cooperand Christopher G. CampbellTackling HindsightBias in Failureto-WarnCasesExamining thispsychological tendencyand offering practical tipsto mitigate its effects.In his 2003 New Yorker article “Connecting the Dots,”Malcolm Gladwell resurrected the term “creeping determinism”to describe hindsight bias. Creeping determinism,he wrote, is “the sense that grows on us, in retrospect,that what has happened was actually inevitable.”Malcolm Gladwell, New Yorker, Mar.10, 2003. Psychologist Baruch Fischhofforiginally coined the term. Gladwell tells ofFischhoff’s 1960s experiment in which, onthe eve of President Nixon’s visit to China,Fischhoff asked a group of people about theprobability of the trip’s success. After Nixon’strip received accolades as a diplomaticvictory, Fischhoff went back to those samepeople and asked them to recall their ownpredictions. Fischhoff reported that, overwhelmingly,the subjects “remembered”being more optimistic than they had actuallybeen. Those who had predicted a lowlikelihood that Nixon would meet withMao, for instance, recalled after knowingthat the meeting had occurred that■ Loren H. Brown is co-chair of DLA Piper’sproduct liability practice and a partnerin the firm’s New York City office, where hespecializes in pharmaceutical and mass tortlitigation. Daniel J. Cooper is presidentof LitStrat Inc., a jury researchand litigation consulting firm basedin New York City. Christopher G.Campbell is a partner in DLA Piper’sAtlanta office, where he specializes inproduct liability litigation.they had predicted its likelihood as high.After gathering the results of this experiment,Fischhoff wrote, “The occurrence ofan event increases its reconstructed probabilityand makes it less surprising than itwould have been had the original probabilitybeen remembered.” Id.Others have recognized this phenomenonin jurors. In his book Legal Blame: HowJurors Think and Talk About Accidents,Neal Feigenson observed that in jurors, aswell as in the population generally, “hindsightbias is one of the most consistentlyreplicated effects in the cognitive psychologyliterature and has proven fairly resistantto attempts to reduce its impact.” NealFeigenson, Legal Blame 62 (APA 2001).We face the challenge of eliminating orat least mitigating hindsight bias in jurorsas defense lawyers in failure- to- warn cases.Whether you call it creeping determinism,Monday morning quarterbacking, or simplyhindsight bias, as we will here, this psychologicaltendency presents a significantobstacle in failure- to- warn cases. This isparticularly true in pharmaceutical productliability cases. Jurors have been knownto hold manufacturers to standards of nearomniscience when drugs or devices havebeen accused of causing or contributing tohorrific injuries or deaths.For The Defense n October 2010 n 15
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