Drug and Device Blog
www.druganddevicelaw.blogspot.com
Dechert LLP
www.dechert.com
A To Z Revisited
November 2, 2011
A reader contacted us the other day, a little miffed because we hadn’t updated one of our
“scorecards.” That surprised us, because we do try to keep our scorecards, and our cheat
sheets, up to date as new cases are decided. So we replied, interested to find out what we
had apparently been missing.
It turns out that what we hadn't updated wasn’t anything we considered a scorecard at all.
Rather, it was a comparison we had run between two mass torts, Aredia/Zometa and Zyprexa.
He was right, we hadn’t updated that, but also wrong in that it wasn't something we intended to
keep updated.
But we can’t expect our readers to know that if we don’t tell them. So first, the explanation.
Our “scorecards” involve issues where the defense clearly has the upper hand. In the
scorecards, we keep track of every decision we know on a subject, good or bad. However,
most of the decisions will be good. After all, we’ve said on numerous occasions, that because
we’re an unabashedly defense blog, we don’t do the other side’s research for them.
Our “cheat sheets” are a little different. Cheat sheets cover important issues where the law
isn’t overwhelmingly favorable to our side. It can be said (and we’ve said it) that, because
those issues are more evenly divided, that it’s even more critical to get the word out about the
caselaw that's favorable to our position. Our cheat sheets try to do precisely that. But, since
we don’t care to do the other side’s research, we only include the favorable cases.
Everything else is just a post.
Our Aredia (and Zometa) versus Zyprexa post was simply that. We were interested in those
two litigations because they had gotten to the stage where the defense wasn’t killing off the
entire mass tort at one fell swoop (something that only preemption is really capable of doing –
see Sprint Fidelis), nor was it killing off entire categories of injury at a stroke (which is what
successful Daubert motions do (see Seroquel)). Rather Aredia and Zyprexa are both like our
old Bone Screw lititgation – a mass tort being litigated, case by case, on (usually) learned
intermediary rule issues.
