Tactical choices in briefwriting

Mark Herrmann has an interesting post at Drug and Device Law about tactical choices in briefwriting. His point: Every choice has its potential benefits and potential risks. Reasonable tacticians may disagree on the best choice. Sometimes the best choice doesn’t work out.

To set the stage: A drug manufacturer, defendant in a state-court class action, is alleged to have promoted its brand-name drug for off-label uses, i.e. uses not approved by the FDA. The manufacturer filed a motion for summary judgment seeking to dismiss claims based on use of generic versions of the drug that the manufacturer did not make or sell. There is no caselaw from the forum state addressing the issue, but there is abundant and unanimous caselaw from outside the forum state—including the federal circuit encompassing the state—holding that the manufacturer cannot be held liable for claims arising from use of generic drugs not manufactured by the defendant. If you’re writing the brief for the manufacturer, what do you do? Herrmann sees two choices:

1. File a short, sweet, 5- or 10-pager, citing all the cases that say the manufacturer should win, and then shut up. After all, judges always say that they prefer shorter briefs.
2. “[L]et the thunder roar.” Cite all those cases, but buttress them with policy arguments and maybe analogical reasoning showing that all this foreign caselaw accords with the forum state’s law.

Either choice is reasonable. Herrmann thinks that the manufacturer may have gone with option # 1. If it did, this time shorter was not better. The judge rendered a scathing decision denying the manufacturer’s motion, featuring a 4½ page block quote from a criminal bill of information, to which the manufacturer pleaded guilty.

I haven’t read any of the briefs in the case, so I have no idea what tactical choices the lawyers made in writing them. But the judge’s opinion provides a clue that the parties’ issue statements may have been crucial, and that the judge adopted the plaintiffs’ issue statement. Here’s an excerpt from page 12 of the opinion:

Plaintiffs claim that defendants ... intentionally manipulated the consensus of medical opinion in America so that doctors came to believe that Gabapentin was a suitable drug for uses which had never been approved by the FDA.... Plaintiffs claim defendants did this when they had a statutorily imposed monopoly on the sale of Gabapentin and that the fruits of this illegal activity resulted in a continuing loss to class members after their monopoly had ceased. The question presented by this Motion for Partial Summary Judgment is whether this loss is compensable as to class members who purchases the generic equivalent of Gabapentin after the defendant’s monopoly had ceased if these allegations are eventually proven at trial.

The legal question presented by this Motion for Partial Summary Judgment is whether under Pennsylvania Law, a drug company which negligently or intentionally perpetrates a fraud upon the medical community may be held responsible for sums paid to other drug manufacturers because of their misrepresentations....

The lesson here may not be brevity versus “letting the thunder roar,” but the importance of framing the issue in a favorable way, to persuade the judge to adopt your statement of the issue.

Comments

[Harry Steinberg]

I think the way you set up the question was not fair. In asking us which option to vote for, you should have told us about the criminal indictment, in which case, I would have voted for a third option that you did not offer -- don't make the motion. Not every case lends itself to a summary judgment motion. Moreover, in the other cases that would have been cited in Option No. 2, there may not have been a criminal indictment that was pleaded to, which would distinguish those cases. There are two other factors you should consider. First, the judge may have let his own biases get in the way -- that happens -- and losing the summary judgment motion is not necessarily the end of the world. That's why we have appeals (in New York, where I mostly practice). Second, just because you lost the summary judgment motion doesn't mean that the judge was right or that you were wrong or that you selected the wrong option.

Just some thoughts.

[Ray Ward]

Harry: Thanks for commenting. The "two choices" you refer to I got from Herrmann's post -- in that part, I'm relaying Herrmann's analysis. My analysis starts with "I haven't read any of the briefs ...."