US Judge Shadur: “Counsel For Merck And Bayer — Meet Me At The Woodshed” And. . . “Don’t Charge Merck For The Avelox® Rework!”

Well, first things first — Senior federal District Court Judge Milton I. Shadur is a very able jurist — and widely respected, here in Chicago — for being very precise in his handling of courtroom decorum and practice, under the federal rules. And so — this opinion will forever endear him to believers in plain English pleading (like myself).

Whether the plaintiffs here, Mr. and Mrs. Hobbs, have a good Avelox® products liability case is unclear, at this stage. What is clear is that the Hobbbs’ claim permanent nerve damage from being prescribed Avelox, or a companion antibiotic. Under the federal rules, then, they should be given notice of whether Merck feels it has responsibility here, in Merck’s Answer. After some 150 pages, Judge Shadur could not tell. And he’s a very sharp man — so he told Merck’s lawyer to pay a $200 fine, and redo the entire Answer, free of charge — and, this time, more faithfully comply with the federal rules for notice pleadings. Ouch. Here’s a bit, of this priceless opinion (and the full 6 page PDF):

. . . .After all, because the real function of federal notice pleading is to identify the respects in which litigants are or are not at odds with each other, it is really thoughtless on the part of defense counsel to thrust on their adversaries and the judicial officer to whom the case is assigned the task of wading through two separate Answers, occupying just under 150 pages instead of half that number, to become informed as to any respects in which jointly represented parties are or are not on the same page and the way (if any) in which they differ. . . .

It is of course oxymoronic for a party to assert (presumably in good faith) that it lacks even enough information to form a belief as to the truth of an allegation, then proceed to deny it. Because such a denial is at odds with the pleader’s obligations under Rule 11(b), that quoted language must be and is stricken from each of those paragraphs of the Answer. . . .

That then leaves for discussion the true absurdity of the vast proliferation of supposed Affirmative Defenses (“ADs”). In that respect defense counsel are first referred to App’x ¶ 5 to State Farm. But that is only the beginning, for what each pleading sets out under the caption “Separate Defenses” reveals a total misconception of what the pleading of ADs is about. . . .
Both of the current Answers (including their ADs) are stricken in their entirety, with defense counsel being granted leave to file a single combined Amended Answer on behalf of both Bayer and Merck on or before August 7, 2015. Any ADs that are included in that joint Amended Answer must conform to the limitations ordered in this opinion. And lastly, no charge may be made to Bayer or Merck by their counsel for the added work and expense incurred in correcting counsel’s errors. Defense counsel are ordered to apprise their clients to that effect by letters, with copies to be transmitted to this Court’s chambers as an informational matter (not for filing). . . .

Gosh — that is about as tough as I’ve ever seen him be. [And here’s the Hobbs’ 29 page complaint at law, for reference.] Onward.


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