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Attack on Shoulder Dystocia Article Fails

An interesting decision from the First Circuit shot down the attempt of two unsuccessful plaintiffs to mount a collateral attack on the truthfulness of a medical journal article they claim unfairly damaged their malpractice cases.

The plaintiffs in A.G. v. Elsevier, Inc. had suffered adverse jury verdicts in cases involving the alleged mismanagement of shoulder dystocia, resulting in brachial plexus injuries to two children.  Both plaintiffs’ obstetric malpractice claims were tried to juries (in Virginia and Illinois), resulting in verdicts for the defendant doctors.  The plaintiffs then joined forces to file suit in Massachusetts federal district court against the American College of Obstetrics & Gynecology (ACOG) and Elsevier Publishing, as well as the journal article’s co-authors, Massachusetts obstetrician Henry Lerner M.D. and Eva Salamon M.D.—who was also the delivering obstetrician in the reported case.

According to the subsequent federal complaint, prominent among the evidence at each malpractice trial was an article entitled Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia, authored by Lerner and Salamon and published in the journal of the American College of Obstetrics & Gynecology (ACOG).  The defense in each case argued that this was evidence that there were other causes for brachial plexus injuries apart from obstetric negligence.

Unfortunately for Lerner, a vocal advocate for “tort reform,” lecturer on the defense of malpractice cases, and a frequent defense witness, his recitation of the facts—specifically the assumption that there was no shoulder dystocia and no traction used in the delivery—was apparently untrue.  For example, according to the First Circuit opinion, the plaintiffs claimed that Lerner never read the labor and delivery record—which contained some evidence of a shoulder dystocia—before writing the article.  Further, Salamon, the delivering obstetrician, admitted under oath that she applied traction in all deliveries–directly contradicting the article’s title.  This, the plaintiff patients’ lawyer embarked on a campaign to elicit a retraction of the article from the ACOG.  Not surprisingly, those efforts failed—the article having become quite useful in the defense of shoulder dystocia malpractice cases!

Finding that the claim that the alleged falsity of the article caused the adverse jury verdicts failed to reach the “plateau of plausibility under [Ashcroft v.] Iqbal and [Bell Atlantic Co. v.] Twombly,” the First Circuit affirmed the district court’s order dismissing the case.  While noting that, based on the factual allegations in the complaint, the plaintiffs had “more than a gambler’s chance of proving fraud,” the Court noted that there were no facts to support the conclusory statement in the complaint that the allegedly false article was the cause of the defense verdicts.  Thus, under the federal standards, which require a plaintiff to plead specific facts in support of his legal allegations, the complaint was properly dismissed.

The difficulty in proving the effect of this article on any given jury verdict is obvious–without the ability to obtain testimony from the jurors about their thought process, which is prohibited almost everywhere–claims like A.G.’s are bound to fail.  However, this does not mean that plaintiffs should simply accept without question medical articles like Lerner and Salamon’s and others of their ilk.  Plaintiffs’ lawyers need to fight aggressively against articles based on poor science or incomplete or misleading facts.

Read the First Circuit’s opinion in A.G. v. Elsevier, Inc. here.

 


Death by Federal Procedure

I seem to be piling on the federal courts lately, but a recent decision from the First Circuit Court of Appeals provides just one more reminder of how the procedural rules are rigidly enforced, and why it’s just not a good place for most plaintiffs to file their claims.

In Rivera-Almodovar v. Instituto Socioeconomico Comunitario, Inc., the First Circuit affirmed a magistrate judge’s recommendation to dismiss a case because the plaintiff failed to request a discovery extension–necessary to obtain documents and depositions from the defendant to oppose summary judgment–until two days after the discovery deadline expired.  The Court relied on the district court’s “stern warning” on the discovery order that ‘any motion to extend the deadline must show good cause and “must be filed well in advance of the deadline.'”  The Court rejected the plaintiff’s claim that her inability to complete discovery was due to the defendant’s failure to respond to requests, instead placing the burden squarely on the plaintiff to pursue the requested documents.

The Court noted that the discovery requests had not been filed until a few months before the deadline expired, and that the plaintiff failed to move to compel production when the defendant did not respond within the allotted time.  The Court then criticized the plaintiff for taking two weeks to review the documents eventually produced to determine that they were not responsive.  But the final straw was that the motion to extend the deadline was two days late.

To be sure, when there is a seemingly harsh result like this, there is sometimes a back story.  Perhaps there was action (or inaction) by the plaintiff not described in the opinion that made the late extension request the proverbial “last straw.”  But if that’s the case, it would behoove the Court to explain the situation, rather than to perpetuate the image of an unfriendly forum that values form over function, and procedural niceties over substantive justice.  The Rivera opinion does little to dispel that image.

Instead it appears that, while the plaintiff perhaps could have moved with a little more alacrity to compel the overdue discovery responses, the defendant benefited from ignoring its discovery obligations.  The Court noted that “two wrongs do not make a right,” and focused only on the plaintiff’s “acts and omissions.”  Given that the judicial system is supposed to prefer resolution on the merits of a case, rather than a dismissal on a technical or procedural ground, it’s hard to see why this is a fair and just result.  And it’s sad to see bad discovery behavior rewarded in such dramatic and Draconian fashion.

Read the opinion in Rivera-Almodovar here.


Staying Home Revisited: No Removal to Federal Court

A recent opinion from the Massachusetts district court highlights the ongoing battle between personal injury plaintiffs, who often prefer to pursue their claims in state court, versus defendants, who are apt to head for federal court at every opportunity.  In Lothrop v. North American Charter, United States District Court Judge Douglas Woodlock rejected the defendants’ claim that one plaintiff had been fraudulently joined for the purpose of destroying diversity.  In that sense, the case represents a reversal of the usual situation, in which one defendant claims that another defendant was fraudulently joined for the sole purpose of thwarting removal.

Earlier this year, I wrote about another opinion from Judge Woodlock, in which he rejected a defendant’s attempt to remove a case to federal court before it had even been served with the complaint.  The defendant had been monitoring federal court filings, and, as soon as it saw that it had been sued, rushed to the courthouse with its notice of removal, attempting to get the case removed before service of process was effected on an in-state defendant, which would clearly prevent removal.

The essence of the defendants’ claim in Lothrop is that the estate of the second of two men who died in a plane crash had been fraudulently joined because 1) the attorney who signed the complaint was an out-of-state lawyer who had not been admitted pro hac vice, and 2) the proper filing fee had (arguably) not been paid.  Thus, the defendants argued, the plaintiff’s complaint–which would destroy diversity and prevent removal to federal court–was a nullity, and that plaintiff had been “fraudulently” joined.  The issue was significant, because of the allegedly fraudulently joined plaintiff was from New York, as was one of the defendants–a happy coincidence for the plaintiff that would prevent removal.

Judge Woodlock rejected the defendants’ contentions, observing, probably correctly, that a party would likely be permitted to correct such procedural irregularities to avoid the harsh consequence of dismissal.  Given the death of the two decedents in the same plane crash, he found no basis to say that their joinder was “without any reasonable basis in fact and without any purpose to prosecute the cause in good faith.”  Thus, he held that the case should be remanded to state court because there was not complete diversity.

The issue of fraudulent joinder was more common in the 1980s, when some plaintiffs’ firms (including an office of which I was then a part) were appointing out-of-state administrators for estates in order to create diversity and get into federal court.  The thinking at that time was that a federal court case would get to trial sooner (which often wasn’t true, and in any event didn’t justify the downside of the harsh treatment of plaintiffs in federal court).  The practice largely ended with a First Circuit decision in Pallazola v. Rucker, 797 F.2d 1116 (1986), disallowing the practice, and became irrelevant a couple years later when an amendment to 28 U.S.C. § 1332(c)(2) made the citizenship of the personal representative irrelevant, in favor of the residence of the decedent or ward.  In recent years, the motion practice has focused more on defeating diversity to stay out of federal court, rather than creating it to get in.