Ask 100 federal prosecutors if there is any part of the job they do not like, and at least 99 of them will mention responding to prisoner habeas corpus petitions. First, they are written incoherently, so it is hard figuring out what the petitioner is asking for and on what grounds. Then you have the obligation of explaining to the court what the prisoner wants, presuming that the prisoner is making the best arguments in the best possible way. Only then do you get to the fun part of demolishing the arguments that you were forced to construct. And even then some judges bend over backwards to give the petitioner every benefit of the doubt, if only for the want of a juris doctor degree. We remember not so fondly one time when a magistrate judge made us jump through a series of ever higher hoops (including retention of an expert witness) to prove the validity of a positive drug test showing that a prisoner who had been incarcerated for four months must have imbibed whilst in stir (resulting in discipline), as opposed to before imprisonment (no additional discipline).

We do not often face pro se adversaries these days, but when we do they frequently find ways to vex us. Right now we are dealing with a plaintiff who has pretty much acknowledged that he has no evidence that our client's medical device was defective in any way, yet he insists on a nuisance payment to make him go away. We seldom see that sort of mendacity and pettiness from even the most scurvy-minded plaintiff lawyers. What's worse is that if we do come to blows-via-pleadings with this pro se plaintiff, there is a good chance that some judge will treat that plaintiff with kid gloves.

For that reason, we do not underestimate the defendant's recent victory in Ohuche v. Merck & Co., 2012 U.S. Dist. LEXIS 147483 (S.D.N.Y. Oct. 12, 2012). At the same time, the case shows how courts occasionally give breaks to pro se plaintiffs that make no sense. The plaintiff alleged injuries from a Zostavax vaccine for prevention of shingles. The label for Zostavax lists several possible side effects, and it is not clear what the plaintiff thinks should have been in the label that was not there. In any event, the doctor never read the label. In any event, the doctor already knew the risks. In any event, "the medical records for Ohuche include notations inconsistent with her allegation that she developed shingles-like symptoms shortly after receiving the Zostavax vaccine." 2012 U.S. Dist. 147483 at *7. Easy case, right?

In the end, yes it was. But the court (and we are talking about an exceedingly important and intelligent judge, Scheindlin) made getting there a wee bit more sticky than we like, and certainly more so than was necessary. Here is how the court begins the Discussion section: "Because plaintiff's Complaint does not state any particular causes of action, it must be construed to raise the strongest arguments possible." Id. at **14-15. As Homer Simpson would say, "D'oh!".

And then the way this principle (of what? Leniency? Fiction?) gets applied to the issue of medical causation is scarier than a Stephen King novel, an episode of American Horror, the prospect of a new Adam Sandler movie, or having to read the latest Parisian expert report. Plaintiff Ohuche appears to have had no expert witness on medical causation. In some courts, that would end the case. Moreover, the facts regarding the timing of the plaintiff's symptoms were sketchy. Nevertheless, the court finds an issue of disputed fact on medical causation based on the existence of medical literature documenting that the vaccine can cause the side effects, "coupled with the allegedly close temporal proximity between the date of the vaccine and the onset of symptoms." Id. at *18. Double D'oh!

We could wheel out scads of precedents refuting this nonsense, including the Eleventh Circuit Guinn case that some of us here worked on and that we mention at the drop of a hat or a hint of bad reasoning on Daubert and medical causation issues. But calm down (so we say to ourselves), because this bad bit on medical causation is pure dicta. It is unnecessary to the opinion, because the court goes on to dismiss the plaintiff's complaint for "lack of proximate causation." Id.

New York applies the learned intermediary rule. Thus, the issue was whether the treating doctor was adequately warned. The doctor testified that she was aware of the adverse reactions associated with the vaccine despite not reading the relevant literature. The vaccine manufacturer "completely fulfilled it's obligation to disclose the risks, side effects and contraindications associated with Zostavax." Id. at *20. The court concludes that if the plaintiff has a viable claim against anyone, it is for malpractice against the doctor. (Come to think of it, that is more dicta, isn't it?). The claims against Merck were dismissed.

So, in the end, it is a good result. But because the court seemed to want to toss a few bones to a pro se plaintiff, we experienced a side effect from an otherwise decent opinion. In South Philly it's called agita. Can we sue for that?