Today is when we hightail our way out of work early to grab the last pumpkin pie and bottle of plonk from the shelves. We are required to bring something to our Thanksgiving host, and apparently an appetite and ugly sweater will not suffice. We shall certainly bring thanks to the dinner.
We have heaps for which to be thankful. We are thankful that both Drug and Device Law heirs are in college. We are thankful that they are close enough to visit when the mood strikes us (call us crazy, but dorm-room squalor makes us nostalgic), though far enough away to make a laundry shuttle unwieldy. We are thankful that the Drug and Device Law Daughter tells us much about daily college doings. We are thankful that the Drug and Device Law Son does not. We are thankful for the opportunity to stick our snout in a trough of lumpy, buttery mashed potatoes. We are thankful that between the football games our crowd is more likely to click the remote onto the Twilight Zone marathon or a Hallmark Hall of Fame weepfest, rather than anything that will help us keep up with the Kardashians.
Some of our thanks come from the job. We are thankful that 2013 has not seen us consolidated for ‘efficiency’ or sanctioned for producing ‘only’ 20 million documents. We are thankful that Bartlett was decided the way it was. We are thankful that we work with such brilliant, generous, creative colleagues. We are thankful that most of the plaintiff lawyers we contend with have a sense of humor. We are thankful for the readers of this blog, who are not the least bit shy about offering ideas and (mostly) constructive criticism. Moreover, we are thankful that a little blow against litigation idiocy was struck in the recent case of Whitener v. Pliva, Inc., 2013 U.S. Dist. LEXIS 164364 (E.D. La. Nov. 19, 2013). The plaintiffs in that case claimed injuries from metoclopramide and sued every manufacturer in sight – including manufacturers who never made anything that plaintiffs ingested. The pharmacy records proved as much. One of those manufacturers, Teva, filed a motion for summary judgment. But the plaintiffs still intended to conduct lengthy discovery “in a futile attempt to prove their unsupported allegations.” 2013 U.S. Dist. LEXIS 164364 at *5. (That was how the court construed the defendant's argument, but we suspect the court agreed with it. We know that we do.) Teva, already aggrieved at being sued for having nothing whatsoever to do with the plaintiffs, sought a protective order from the court staying all of its discovery obligations pending the resolution of its summary judgment motion.
Naturally, the plaintiff was outraged that it might be denied the opportunity to drag a hapless defendant through expensive discovery. Naturally, we think it is reprehensible that defendants who have not been found liable for anything are forced to incur astronomical discovery costs. Discovery is the brussels sprouts of litigation. ESI discovery is like brussels sprouts drizzled in vegemite. Usually, plaintiffs argue that discovery should be available because, well, something might surface. Just as usually, courts roll over and permit discovery because … who knows? In the Whitenercase, the plaintiffs threw an extra-long hail Mary pass to try to salvage their discovery plan. They argued that various metoclopramide defendants, including Teva, merged in late 2008, perhaps opening the possibility that the plaintiffs ingested medication manufactured by Teva.
Thanks for playing. (We don’t really mean that.) The pharmacy history sheet showed that plaintiffs ingested metoclopramide manufactured by defendant PLIVA, and not Teva, during the month of July, 2008. The merger did not take place until December, 2008. Therefore, the date plaintiffs “ingested Pliva’s product predates the merger of Barr, Pliva, Inc’s subsidiary and Teva. As such, the Court finds that the metoclopramide Plaintiff ingested during July 2008 was likely, as identified in the pharmaceutical records of Plaintiff, a Pliva and not Teva, product. The Court finds that Teva has presented sufficient good cause to warrant a temporary stay in discovery as continued discovery will not likely product facts necessary to withstand judgment as a matter of law.” Id. at **11-12. Crank up the discovery machine for no reason? No thanks.
Thank you, E.D. Louisiana. For your common sense and fairness, we’ll save you an extra helping of cranberry sauce. We’ll reach deep into the cabinet and pull out the good scotch for you. We’ll let you select the dinner music (but no Perry Como, Kanye West, or Mannheim Steamroller, please). We’ll let you plop into the comfy chair for the after dinner snooze. When you finally get up to go, we’ll tell you how much we enjoyed seeing you again, and how much we want to see you again soon. And we’ll mean it.