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Jumat, 16 Agustus 2013

No Trout in the Milk

Yet once more, O ye laurels, and once more. Another splendid Viagra opinion sprang forth recently. This time we aim to avoid any silly double-entendres, even accidentally. (What's that? We already failed?!).

The case of Ridgeway v Pfizer, Inc., No. 09-2794 (E.D. La. April 27, 2010), involves the application of that old law school chestnut, res ipsa loquitur. More specifically, the case analyzes why res ipsa loquitur does NOT apply.

Where to start? Case or law? We'll start with the case. Plaintiff claimed he took a Viagra pill, enjoyed its benefits soon after, and soon after that he suffered a stroke. That's pretty much all the evidence plaintiff brought to bear. Plaintiff's doctors did not think Viagra caused the stroke. One doctor said there was "no way" Viagra caused the stroke, adding that "there's no cardiologist, urologist, neurosurgeon with credentials and any integrity that would blame Viagra for him having a stroke." Slip op. at 7. That doctor also threw around words like "totally ridiculous" and "nonsense." Id. at 8. Other treaters agreed, disavowing knowledge of any potential mechanism for Viagra to have caused the stroke, or of "any medical literature that would establish a causal link between the two". Id.

None of this rather helpful (for the defense) testimony was disputed. In fact, plaintiff offered precisely no evidence in response. For example, plaintiff offered no expert who opined that Viagra caused the stroke.

So at this point we're wondering whether this is a laydown. (Darn it!). What's the issue?
According to plaintiff, he don't need no stinkin' evidence because it's a case of res ipsa loquitur. That Latin phrase is usually translated as "the thing speaks for itself.". There are some Classics scholars who quibble and say it means "the thing itself speaks". We won't get into that fight. After all, in high school we thought "Cogito ergo sum" meant "I think my name is Ergo".
Why was Ridgeway asserting res ipsa loquitur? Simple: (1) He was a-okay, (2) then he took a Viagra pill, and (3) then he had a stroke. QED.

Well, no. As the court explains, res ipsa loquitur applies when something quite unusual happens and it almost certainly could not have happened unless someone breached a duty of care. "The doctrine allows an inference of negligence to arise [the court's words, not ours] from the common experience of the factfinder that such accidents normally do not occur in the absence of negligence." Slip op. at 10.

Think of a surgical instrument residing in someone's innards after an operation. That won't happen unless somebody was negligent. The Ridgeway court cites the seminal res ipsa loquitur case of Byrne v Boadle, (1863) 2 H & C. 722, 159 Eng. Rep. 299 (Ct. Exch), where a barrel of flour fell out of a warehouse window and clobbered some poor unfortunate. That barrel stays in the warehouse and that head stays unconked if everybody did their job correctly. The source of injury was in the exclusive control of the defendant and there's no chance of contributory or comparative negligence.

Our own personal favorite example of res ipsa is Thoreau talking about finding a "trout in the milk." Some 19th Century Massachusetts dairymen driving milkwagons to market apparently would water the product down by dipping buckets in the canal and pouring the water into the milk. It's like a Transcendalist New England version of the mouse in the Coke bottle. (We once saw a criminal defense lawyer try to use the "trout in the milk" image to argue why there was inadequate evidence that his client was running a mail fraud scheme. But while there was no trout in the milk, there were tape recordings and a cooperating witness, so Thoreau could not acquit the accused.)

The doctrine of res ipsa loquitur is said to go back to Cicero (in a case where, like Ridgeway, he came in second place). But it didn't apply to the Ridgeway case. The plaintiff had a history of hypertension. For such a man, strokes are, sadly, not all that unusual. Strokes can happen (usually do happen) sans Viagra. Put simply, plaintiff had not managed to exclude other serious risk factors. It also didn't help plaintiff that he had been taking Viagra for a decade without incident. (Well, maybe that's not exactly the right way to put it, but you get the point). Even worse, plaintiff's opposition brief stated that medical evidence was unavailable "due to the fact that Plaintiff's injury is one that is so new in nature and mechanism of action there has [sic] not been studies completed". Slip op. at 14. So this is not a case of res ipsa loquitur. No barrel fell out of a window. There's no trout in the milk. Rather, as the court concluded, it "is simply a case in which plaintiffs have no evidence of causation". Id. at 14.

Thanks to Lori Leskin of Kaye Scholer for sending along this win.

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