[00:00:08] Speaker 04:
Whenever you're ready, counsel.

[00:00:10] Speaker 03:
Good morning, your honors, and may it please the court.

[00:00:12] Speaker 03:
My name is Brian Nadler from Fenimore here in Seattle, appointed pro bono counsel on behalf of Appellants David and Ganna Deeringer.

[00:00:19] Speaker 03:
I'd like to reserve three minutes for rebuttal.

[00:00:22] Speaker 03:
This appeal, so I'm gonna make three points here.

[00:00:25] Speaker 03:
First, the denial of counsel, of making the request for counsel under section 1915 E1 was an abuse of discretion and not harmless.

[00:00:33] Speaker 03:
Second, that summary judgment on the issue of proximate cause cannot stand because it rests on a record that insufficiently answers the legal issue.

[00:00:40] Speaker 03:
And third, the district court compounded those errors by applying the sham affidavit rule to exclude important information about one of the deer injures prescribing physicians without making the findings the court requires.

[00:00:51] Speaker 03:
starting with the denial of counsel.

[00:00:53] Speaker 03:
Section 1915 E1 requires a case-by-case inquiry focused on whether the litigant can fairly proceed without assistance given the complexity of the case.

[00:01:03] Speaker 03:
And here, the district court recognized a host of factors that collectively here point towards making the request for counsel.

[00:01:10] Speaker 03:
It acknowledged that pharmaceutical product liability cases are among the most complex cases the court sees.

[00:01:16] Speaker 03:
At the same time, it acknowledged Mr. Dieringer's paralysis and limited access to legal materials, his wife's language barrier, and the pandemic error restrictions on Mr. Dieringer's public library access.

[00:01:28] Speaker 03:
And it also noted that the Deringers had made good faith but unsuccessful attempts to obtain counsel.

[00:01:34] Speaker 03:
And despite that, the court refused to request appointing counsel without getting into the two analytical factors, which are one, evaluating the likelihood of success on the merits, and two, the ability of the Deringers to articulate their claims considering the complexity of the legal issues.

[00:01:50] Speaker 03:
First,

[00:01:51] Speaker 03:
on the examination of the merits, the district court instead seemed to deem it significant that no attorney had taken the case and doubted one would, despite the availability of a contingency fee prospect.

[00:02:03] Speaker 03:
And this court has rejected similar reasoning in Bradshaw, that if the inability to secure counsel justified denial, Section 1951 would have no meaning.

[00:02:14] Speaker 03:
And second, it relied on the Dieringer's filings being clearer than other pro se parties, or as the district court mentioned, or some lawyers.

[00:02:22] Speaker 03:
But writing clarity is not the ability to litigate an expert-driven, medically complex failure-to-warn case.

[00:02:30] Speaker 03:
Counsel matters for many things, including theory development, party identification.

[00:02:34] Speaker 03:
In this case, as the Dieringer's mentioned, expert retention.

[00:02:38] Speaker 05:
conducting discovery not just writing and that error wasn't harmless you know as you know once counsel was denied if you think about harmless error don't you necessarily have to look at what happened at summary judgment

[00:02:53] Speaker 03:
Yes, your honor.

[00:02:55] Speaker 03:
And yes.

[00:02:56] Speaker 03:
And so this brings me to summary judgment.

[00:02:59] Speaker 03:
And even leading into that, the Deringers were locked out of tools necessary to litigate fairly.

[00:03:05] Speaker 03:
In response to the first summary judgment motion, they noted that they had had issues retaining experts who wouldn't work with them without having counsel.

[00:03:13] Speaker 03:
I understand.

[00:03:14] Speaker 03:
It was tough for them.

[00:03:17] Speaker 05:
No question about it.

[00:03:19] Speaker 03:
Well, and so summary judgment, there are issues in summary judgment that would have been avoided.

[00:03:24] Speaker 03:
With that, with the dangerous having counsel, and you could get to that when you look at the.

[00:03:31] Speaker 03:
how the grant of summary judgment was flawed based on the issue of proximate cause.

[00:03:36] Speaker 03:
And so when you get to the issue of the summary judgment motion, Lilly had based a lot of it off of Dr. Bardian's testimony on whether he would have still prescribed Cialis to Mr. Deeringer.

[00:03:50] Speaker 03:
And so the legally relevant question on proximate cause on summary judgment would be here, assuming that there is a causative connection

[00:04:00] Speaker 03:
between Cialis and ICH.

[00:04:03] Speaker 03:
And there's a warning to not to prescribe Cialis as someone at risk for ICH.

[00:04:08] Speaker 03:
Would Dr. Barton have changed his prescribing decision?

[00:04:12] Speaker 03:
And the context of the questioning in the transcript is important.

[00:04:16] Speaker 03:
The framing of this matters.

[00:04:19] Speaker 03:
The legally relevant hypothetical is absent.

[00:04:21] Speaker 03:
So the Deringers had proposed a warning

[00:04:23] Speaker 03:
in discovery that stating that PDE5 inhibitors can cause diseased blood vessels in the brain to burst and as such should not be prescribed to patients with ICH risk or family history of ICH.

[00:04:37] Speaker 03:
And that's at SCR 486.

[00:04:40] Speaker 01:
And Dr. Bardin was- Yeah, ask a question.

[00:04:43] Speaker 01:
Yes.

[00:04:43] Speaker 01:
Part of the challenges for me as I was reviewing some of this is in

[00:04:48] Speaker 01:
maybe other traditional notions of harm harmless error there's a proper and so we might know what would have happened if evidence was considered here we have a problem with just the bill that the ability to develop the evidence altogether at what point is our

[00:05:10] Speaker 01:
not imagination is in the right word, but how far should we be delving into the possibility that there could have been a difference in the way that evidence would have been developed if an attorney had been appointed before it's too much of an engagement in the possibility?

[00:05:27] Speaker 03:
Yes, Your Honor.

[00:05:28] Speaker 03:
So here, I don't think you need to go that far to see where the critical difference is.

[00:05:33] Speaker 03:
So you don't need to dive that far to see where this distinction is.

[00:05:38] Speaker 03:
Here, you know, and I think if you had to go too far to make that leap, that would be one thing.

[00:05:44] Speaker 01:
But here, you're saying we wouldn't have to go that far.

[00:05:47] Speaker 01:
Correct.

[00:05:47] Speaker 01:
And what are the indications of the evidence or even the partial evidence that existed here that suggests to you that had an attorney been involved, it could have very well been different, or at least it was sufficiently, the probability was sufficiently different enough that it would have been harmful.

[00:06:07] Speaker 03:
Sure, and I'm going to jump between a couple different points in the record here.

[00:06:09] Speaker 03:
So first, when you look at the questioning to Dr. Barton, he's asked, you know, what is what evidence he has, you know, supporting the parts of the Dieringer's proposed warning.

[00:06:21] Speaker 03:
And then in that context, Lily asks him,

[00:06:25] Speaker 03:
given it almost in that context, it's given that, given that warning and what's, what's in Lily's existing warning, which for summary judgment purposes, we're presuming is inadequate.

[00:06:34] Speaker 03:
Would you have made a different prescribing decision?

[00:06:36] Speaker 03:
And, and Dr, and Dr. Barton's responses, you know, he said at SCR 400 to 401, it's a very qualified response.

[00:06:43] Speaker 03:
It's, you know, typically for a diseased blood vessel or aneurysm to rupture would go along with a higher blood pressure.

[00:06:48] Speaker 03:
So no.

[00:06:50] Speaker 03:
And so A, that's very qualified.

[00:06:52] Speaker 03:
And in Dr. Horst's testimony, and he's the physician who resumed prescribing duties after Dr. Barden,

[00:07:03] Speaker 03:
One of the questions that's posed to him is, when faced with a warning that Cialis would cause ICH, would he have made a different prescribing decision?

[00:07:11] Speaker 03:
And he says that he likely would have.

[00:07:15] Speaker 03:
And then kind of going back to, and then I think Lily asks him another question about the warning that, the sufficiency of the warning that the derringers provided.

[00:07:24] Speaker 03:
And he doesn't really see a remarkable difference between the warning that the derringers provided

[00:07:29] Speaker 03:
and the warning that Lily already provided for Cialis.

[00:07:34] Speaker 03:
So you see these issues generated between the issue of proximate cause on an increased warning and the label that the Deringers had proposed.

[00:07:45] Speaker 03:
And I think that's significant here.

[00:07:47] Speaker 03:
And one that could have been avoided early on with counsel guiding the Deringers through this.

[00:07:55] Speaker 03:
You mean they wouldn't have asked that question?

[00:07:57] Speaker 03:
I think that an attorney who, having an attorney there would have qualified that question and followed up at deposition and made that, because it's a key distinction for the purposes of proximate cause.

[00:08:09] Speaker 04:
Wait, Derringer asked Barton if he would have changed?

[00:08:14] Speaker 04:
No, Lilly asked him that question.

[00:08:17] Speaker 03:
So the way that that question was framed to Dr. Barden was, so contextually based on what evidence he knew of that would support the Dieringer's proposed warning.

[00:08:27] Speaker 03:
And his answer is to each of those sections.

[00:08:31] Speaker 03:
So A, was he aware of evidence supporting that PDE-5 inhibitors can cause disease blood vessels in the brain to burst?

[00:08:37] Speaker 03:
His answer was no.

[00:08:39] Speaker 03:
And then the follow-up question was, does he know of evidence that

[00:08:43] Speaker 03:
that this should not be prescribed to patients at risk for ICH, and his answer was no.

[00:08:48] Speaker 03:
And then the follow-up question, the framing of that was whether he thought, the framing of this was whether he thought there was some scientific incorrectness in the warning itself, and based on that, would he have changed his prescribing decision?

[00:09:00] Speaker 03:
It's different than, if he was given a warning that said, and assuming it's true, Cialis can cause an ICH in patients at risk for it, do not prescribe it to these patients,

[00:09:12] Speaker 03:
That answer is unaddressed.

[00:09:15] Speaker 03:
And I think having an attorney on the other side to respond to that and make that follow-up question to Dr. Barden and see what his response would have been is critical.

[00:09:26] Speaker 04:
And so I just want to... I mean, have we followed up with Dr. Barden and find out what he would say to whatever questions you think should have been posed?

[00:09:36] Speaker 03:
I have not, Your Honor.

[00:09:38] Speaker 04:
So we're kind of left to speculate then.

[00:09:41] Speaker 03:
We are but I mean this all this all goes back to you know we are there is there is a little bit of speculation there But one that you know because summary judgment was was answered on it was based on this and this key this question Yeah, it's not an answer that actually you know when you when you look at the question, and then how it is framed at summary judgment that

[00:10:02] Speaker 03:
yes, Dr. Bardin would not have changed his prescribing decision, it is not an apt comparison, and it's not actually the question that he addressed during his deposition.

[00:10:15] Speaker 03:
And so if it... That one question bore a lot of weight in the summary judgment.

[00:10:19] Speaker 01:
Correct.

[00:10:22] Speaker 01:
How would you ask us to consider the...

[00:10:27] Speaker 01:
The analysis here and how it would be applied at what point and here's the question I want to understand at what point would the speculation or it would become speculation as opposed to inference on our part to determine that this would have been harm harmless error.

[00:10:43] Speaker 03:
You know, in your honor, I think if.

[00:10:48] Speaker 03:
I'm trying to think of a hypothetical here that would answer that question.

[00:10:51] Speaker 01:
But I think if there was a... Part of what I'm concerned about is maybe this is something you'd say that we ought to do is put ourselves in the shoes of the trial judge or the district judge and saying this is what we would think would have been an appropriate consideration.

[00:11:06] Speaker 01:
Therefore, it's a harmful error to have not appointed counsel.

[00:11:13] Speaker 03:
Yes, Your Honor.

[00:11:14] Speaker 03:
And I think some of this goes into maybe the remedy that we think would be appropriate here.

[00:11:20] Speaker 03:
And I think if the court had made the request, say for example, the court had made the request for counsel, and we know that the court cannot force someone to represent the Dieringer's, that would be one thing.

[00:11:30] Speaker 03:
But the court did not make that request at all.

[00:11:34] Speaker 03:
And as we pointed out in the supplemental briefing, that there is counsel that is willing to step in and represent the Dieringer's should the court reverse this.

[00:11:43] Speaker 03:
And I think that the reversal doesn't have to be a, you know, this starting starting from page one of the entire case, you know, for example, the court can reverse and and assuming that counsel appears and represents Mr. Deringer that,

[00:12:00] Speaker 03:
that a limited discovery period be reopened so that Dr. Barton can be followed up with and summary judgment can be addressed on the proper grounds.

[00:12:09] Speaker 03:
It's something that, even though there is speculation, there's some speculation.

[00:12:12] Speaker 03:
It's not a far leap at all.

[00:12:14] Speaker 03:
It is kind of the next question that would be asked, for example, on deposition.

[00:12:20] Speaker 03:
It's not something that's very far afield here.

[00:12:26] Speaker 03:
And it's something that, in terms of now relief, the court can address here, give the Deringers the chance to have counsel represent them and resolve these issues.

[00:12:38] Speaker 03:
Even if it was, say, for example, it ended up being just positive, the Deringers had counsel representing them to navigate this aspect of the case and the case going forward.

[00:12:47] Speaker 03:
And I want to turn to one last bit here.

[00:12:50] Speaker 04:
I want to save some time for a rebuttal, Your Honor.

[00:12:52] Speaker 04:
Yes, Your Honor.

[00:13:09] Speaker 02:
Good morning, Your Honors, and may it please the court, Cole Carter for the appellate Eli Lilly.

[00:13:13] Speaker 02:
I want to start with this question, which is whether the question of whether the presence of counsel below might have altered the deposition testimony and whether that could have changed the result at summary judgment.

[00:13:25] Speaker 02:
So I want to address that question in two parts.

[00:13:28] Speaker 02:
First,

[00:13:29] Speaker 02:
I don't think there's any basis for the court to speculate that the presence of counsel would have altered the testimony because I think the doctor Barton's testimony is really quite clear.

[00:13:38] Speaker 02:
The supposed ambiguity that my friend is pointing to is that there's a series of questions about the evidence that Dr Barton was aware of relating to.

[00:13:47] Speaker 02:
relationship reports of and stroke and then the final question is whether if you would receive the warning that the proposed, would that have changed your prescription decision?

[00:13:59] Speaker 02:
And he says, no, and then he, and before he says, no, he gives an explanation.

[00:14:04] Speaker 02:
He says, typically for a disease blood vessel or an aneurysm to rupture, it would go along with higher blood pressure.

[00:14:09] Speaker 02:
So.

[00:14:10] Speaker 02:
No.

[00:14:10] Speaker 02:
And what he's saying is that because Cialis lowers blood pressure, which is undisputed, I wouldn't expect this to be a serious risk, and it wouldn't have changed my prescription decision.

[00:14:20] Speaker 02:
And that interpretation, as I understand, plaintiffs agree with here, that he was rejecting the scientific basis for the proposed warning.

[00:14:29] Speaker 02:
And your point is to the issue of whether it's harmless error to correct, not appointed.

[00:14:37] Speaker 02:
Yes, your honor.

[00:14:37] Speaker 02:
So the testimony is really completely unambiguous.

[00:14:40] Speaker 02:
And the fact that explanation he gives really strengthens it for the defendant rather than undermining it because it explains that he simply doesn't think that the warning.

[00:14:50] Speaker 02:
is warranted and that it wouldn't have changed his prescription decision.

[00:14:52] Speaker 02:
Now, I understand my friend to be saying that that's a legally significant, or rather that that answer doesn't sort of assume what needs to be assumed for purposes under the learned intermediary doctrine.

[00:15:05] Speaker 02:
I believe I heard my friend say that the legally relevant question is whether assuming that there is a causal connection between Cialis and stroke

[00:15:14] Speaker 02:
whether then the prescribing physician would have altered his decision.

[00:15:17] Speaker 02:
But that is not the relevant question.

[00:15:19] Speaker 02:
The only relevant question is whether, if the warning plain is proposed had been on the label, would that have altered the prescription decision?

[00:15:26] Speaker 02:
And if a physician testifies that they simply wouldn't have read the label, that's enough under the learned intermediary doctrine to break the chain of causation.

[00:15:36] Speaker 02:
The Washington Court of Appeals has held that in the Sherman versus Pfizer case that we cite in our response brief.

[00:15:42] Speaker 02:
And this court under California law in the Himes case, Himes versus Somatics, which we also cite, said that when a clinician disbelieved based on their experience with the product that the supposed risk wouldn't actually have manifested, that also breaks the chain of causation.

[00:15:58] Speaker 02:
So Dr. Bardon, an attorney who was present in that deposition, wouldn't have been able to do anything with the fact that

[00:16:05] Speaker 02:
Dr. Barton appeared to reject the scientific basis for the warning.

[00:16:08] Speaker 02:
That is a legally sort of black and white reason that the chain of causation is broken.

[00:16:15] Speaker 04:
But the lynchpin of all that is that everyone agrees that Cialis lowers blood pressure versus increases blood pressure.

[00:16:21] Speaker 02:
Correct.

[00:16:21] Speaker 02:
But even if Dr. Barton were wrong about that, it would still, for our purposes, the chain of causation would be broken because it's what he believed and whether the warning would have altered his- But another attorney disabused him of that belief?

[00:16:33] Speaker 02:
Well, I don't think that would have mattered, because even if after the fact that he is disabused in a deposition, someone proves him wrong, the question is what he would have done at the time of the prescription decision.

[00:16:42] Speaker 02:
So if that was his belief, then that would be the end of the story, I believe.

[00:16:48] Speaker 02:
I also want to address, though, the question that I believe Judge Keshavai raised about whether this is even the type of thing the court should be considering delving into the record and trying to imagine how it could have been shaped differently by the presence of

[00:17:00] Speaker 02:
an attorney.

[00:17:00] Speaker 02:
And I don't think it really is the type of thing that's relevant to the question of whether a failure to appoint counsel was harmless.

[00:17:08] Speaker 02:
And I would point the court to the court's decision in Wilborn, which both parties cite in their briefs.

[00:17:13] Speaker 02:
And this didn't arise in the harmless error context.

[00:17:18] Speaker 02:
It was about whether to appoint counsel in the first place.

[00:17:20] Speaker 02:
But I still think it's quite informative.

[00:17:21] Speaker 02:
The court said, if all that was required to establish successfully the complexity of the relevant issues for purposes meaning the first factor of the standard,

[00:17:29] Speaker 02:
under 1915, if all that was required was a demonstration of the need for development of further facts, practically all cases would involve complex legal issues.

[00:17:37] Speaker 02:
And then the court goes on to say that a pro-state litigant will seldom be in a position to investigate easily the facts necessary to support the case.

[00:17:45] Speaker 02:
So what the court is saying there, I believe, is that they recognize that a pro-state litigant is almost never going to be as equipped to develop the record and develop the factual basis for their case as a counseled litigant will be.

[00:17:59] Speaker 02:
However, that's not in itself a reason to appoint counsel, because if it were, every single indigent plaintiff would receive counsel in a civil case.

[00:18:06] Speaker 02:
So if that can't- Much of a receiving of it, but an effort to find counsel is- Correct.

[00:18:11] Speaker 02:
And I think that's a reason to another point that I want to hit in a second, but correct.

[00:18:18] Speaker 02:
But even then, the standard for requesting

[00:18:21] Speaker 02:
Is set quite high by this court, which is exceptional circumstances.

[00:18:24] Speaker 02:
So it's always going to be the case that a, the district judge needs to consider the 2 prime factors that.

[00:18:33] Speaker 05:
They must, you know, likelihood of success on the merits and.

[00:18:36] Speaker 02:
Correct your honor and I think that there are two things I would say about the likelihood of success evaluation by the district court.

[00:18:42] Speaker 02:
First, if the court thought that the district court decision doesn't really assess it at all, that at most would be harmless air, both for all the reasons we've been discussing, but even for a more immediate reason, which is if the court had explicitly considered that factor.

[00:18:56] Speaker 02:
he would have correctly found that there wasn't a particular likelihood of success based on what was before him at the time, much less as the factual record developed.

[00:19:06] Speaker 02:
And that's because this is a run-of-the-mill pharmaceutical product liability case.

[00:19:10] Speaker 02:
I don't take plain if Stephen argued that it's a particularly exceptional one.

[00:19:14] Speaker 02:
So if Mr. Derringer were entitled to a request for pro bono counsel,

[00:19:21] Speaker 02:
It's hard to see why any pharmaceutical or product liability plaintiff wouldn't be entitled to the same thing.

[00:19:26] Speaker 01:
Immediately after Eli Lilly moved to dismiss, Your Honor.

[00:19:37] Speaker 01:
The very early stages before discovery was even correct.

[00:19:40] Speaker 01:
Part of the challenge is, is we also at that stage, it would have been difficult to determine whether something would have been harmful or.

[00:19:47] Speaker 02:
Well, that's true, Your Honor.

[00:19:48] Speaker 02:
And this court has has made that point.

[00:19:50] Speaker 02:
And I believe in a footnote in Willborn says, you know,

[00:19:53] Speaker 02:
It's hard for us to make this determination at such an early stage of the case.

[00:19:57] Speaker 02:
However, that's how it has to be done, because the requests are almost always made at the outset.

[00:20:02] Speaker 02:
You have to evaluate the complaint in the early.

[00:20:04] Speaker 01:
Would you say that the issues about the evidence around the labeling, for example, then, is almost a red herring?

[00:20:12] Speaker 01:
Because at the time that the court would have considered appointment of pro bono counsel, the questions around likelihood of success on the merits is a very different question prior

[00:20:23] Speaker 01:
prior to discovery being developed in evidence and being made part of the record.

[00:20:28] Speaker 01:
Correct, Your Honor.

[00:20:29] Speaker 02:
And I think additionally, the complexity of these types of cases that the district court recognized really never even came into play here.

[00:20:38] Speaker 02:
Because the record that we're looking at is very straightforward, just a deposition of Mr. Derringer in two of his positions and whether the presence of a warning would have altered decision making.

[00:20:47] Speaker 02:
We haven't gotten to

[00:20:49] Speaker 02:
general causation, the things that make these types of cases complex.

[00:20:52] Speaker 01:
So I would agree that that's... Would the decision to deny counsel at the very beginning stages before discovery be a different consideration in terms of determining harmless error than if discovery had already been developed?

[00:21:08] Speaker 01:
For example, as a trial court judge, I see those cases coming across my plate where people have now sought pro bono counsel

[00:21:18] Speaker 01:
in the midst of discovery, or even on the cusp of the filing of a summary judgment motion, a record is developed.

[00:21:24] Speaker 01:
I can see for myself in putting myself in those shoes, I'm evaluating now a record that might help me understand likelihood of success on the merits.

[00:21:35] Speaker 01:
Whereas at the very beginning stages when I'm only considering allegations and a complaint, the failure to consider likelihood on the merits at all, which is what I think is the argument on appeal to even consider that factor,

[00:21:49] Speaker 01:
putting ourselves in those, with the consideration of no evidence being developed yet, it would put me in that likelihood of success of the merits is almost error itself to not consider when determining whether to grab to deny pro bono transfer.

[00:22:05] Speaker 02:
Sorry, you were saying that it would be error in the context where a record has been developed?

[00:22:09] Speaker 02:
When no record has been developed.

[00:22:10] Speaker 02:
When no record has been developed.

[00:22:12] Speaker 01:
And only considering the allegations in the complaint.

[00:22:15] Speaker 02:
So I think that, as I said, I think that

[00:22:17] Speaker 02:
At most, the failure to address that factor is harmless because you do have to consider it based on what is in front of you.

[00:22:26] Speaker 02:
And all that was in front of the district court at the time was a complaint that alleges a injury that's common for individuals of Mr. DeAndre's age and with respect to a drug that it's not recognized to generally cause stroke.

[00:22:41] Speaker 02:
So it's a run of the mill and seemingly

[00:22:44] Speaker 02:
as these things go, relatively unlikely to succeed pharmaceutical product liability case.

[00:22:49] Speaker 02:
And that's all the district court had to go on.

[00:22:51] Speaker 02:
So if the court had especially addressed it, and if this court looks at it, looking at what was in front of district court at the time.

[00:22:59] Speaker 05:
Let me ask you this.

[00:23:00] Speaker 05:
Have there been any other run of the mill pharmaceutical cases like this where the plaintiffs have prevailed?

[00:23:06] Speaker 02:
Not with respect to Seattle.

[00:23:07] Speaker 02:
It's not aware of, Your Honor.

[00:23:10] Speaker 02:
But I also wanted to mention that it's really fair to say that

[00:23:14] Speaker 05:
that a pharmaceutical case like this is just kind of common?

[00:23:20] Speaker 02:
Well, I'm saying as pharmaceutical product liability cases go, this is a very run-of-the-mill one.

[00:23:25] Speaker 02:
And I would say they're quite common.

[00:23:26] Speaker 05:
It makes it run-of-the-mill.

[00:23:30] Speaker 02:
But there's no particularly distinguishing features.

[00:23:32] Speaker 02:
It's just a plane of who suffered it.

[00:23:34] Speaker 02:
We need an expert, wouldn't you?

[00:23:36] Speaker 02:
I don't think so, because I think the things that make it run-of-the-mill are apparent from the pleading.

[00:23:39] Speaker 02:
So it's a very common

[00:23:41] Speaker 02:
injury.

[00:23:41] Speaker 02:
It's not like mesothelioma and asbestos hurt to signature harm like that.

[00:23:45] Speaker 05:
It's a very common... Do you need an expert on causation?

[00:23:48] Speaker 02:
Oh yes, the plaintiffs of course would need an expert for general causation.

[00:23:51] Speaker 05:
That's what I meant, you need an expert in these kinds of cases.

[00:23:54] Speaker 02:
Right, but I think the implication of

[00:23:56] Speaker 02:
The call we were having is that a plaintiff would be entitled to a request for counsel in 1915 E under in any pharmaceutical product liability case, because it's always necessary to have an expert for general causation.

[00:24:08] Speaker 02:
And so when again, the ultimate test under 1915 E is exceptional circumstances.

[00:24:12] Speaker 02:
So the district court is looking at.

[00:24:14] Speaker 02:
a complaint that just alleges a common injury for people of Mr. Derringer's age, a drug that's not generally recognized by the FDA or any regulator to cause that injury.

[00:24:23] Speaker 02:
And so if the court had expressly considered likelihood of success, then I don't think there would have been any grounds to say this is the type of case that rises to exceptional circumstances, particularly given the fact, as the District Court noted, that if anything, Mr. Derringer's pleadings were exceptionally competent for a pro se litigant.

[00:24:40] Speaker 04:
Is there any method for an indigent plaintiff to get funding for an expert?

[00:24:47] Speaker 04:
Or is that all?

[00:24:48] Speaker 02:
I'm not aware of any, Your Honor.

[00:24:50] Speaker 02:
And I think that that relates to the court's observation at Wilborn, which is that it's always going to be harder for proselyticans to develop a factual record to support their claims, but that's not grounds for structural problems.

[00:25:01] Speaker 02:
Yes.

[00:25:01] Speaker 02:
But I did want to mention the district court's observation that their interests had tried to obtain counsel and failed in its significance.

[00:25:10] Speaker 02:
And my friend points to the Bradshaw decision as an example of this court rejecting that type of reasoning.

[00:25:16] Speaker 02:
And I wanted to point out something significant about Bradshaw, which is that it does not involve 28 USC 1915E, which is the provision that is at issue here.

[00:25:24] Speaker 02:
It involves a Title VII specific provision, 42 USC 2000E-5, subsection F,

[00:25:30] Speaker 02:
which actually is much more generous to pro se litigants than 1915e.

[00:25:35] Speaker 02:
It allows for mandatory appointment of counsel.

[00:25:37] Speaker 02:
So you can actually make a lawyer take a case.

[00:25:40] Speaker 02:
And it has a different standard for appointment.

[00:25:42] Speaker 02:
It is not exceptional circumstances.

[00:25:44] Speaker 02:
And diligence is one of the factors required to be shown.

[00:25:47] Speaker 02:
So it would be truly self-defeating to require a plaintiff to show diligence under this Title VII provision, but then hold it against them that they weren't able to obtain.

[00:25:55] Speaker 02:
Council.

[00:25:56] Speaker 02:
And there's another important distinction, which as the court observes in Bradshaw, which is that often in Title VII cases, the monetary rewards, even plus attorney's fees, are not going to be sufficient necessarily to motivate private counsel.

[00:26:08] Speaker 02:
And that's different in this context in the pharmaceutical product viability space, where contingency fee representation is the norm, where tens of thousands of plaintiffs every year obtain contingency fee representation.

[00:26:17] Speaker 01:
There's no dispute, though, under this statute that

[00:26:20] Speaker 01:
that the trial court did not consider the factor of likelihood of success in the matter.

[00:26:27] Speaker 01:
Not expressly in its order, but I do think- Not expressly or so you think that they did?

[00:26:33] Speaker 01:
Or did they satisfy the element?

[00:26:34] Speaker 02:
I think that the consideration of the inability of the derringers to obtain counsel is a reasonable proxy for likelihood of success because in this area, contingency fee representation is the norm.

[00:26:45] Speaker 02:
And if counsels who practice in this space don't think

[00:26:49] Speaker 02:
don't think the case is worth taking, that is actually a reasonable assessment of its likelihood of success because it's so common.

[00:26:57] Speaker 01:
It also could be an indication of the size of an award.

[00:27:01] Speaker 01:
That's true.

[00:27:02] Speaker 01:
Well, I think you have multiple reasons for why somebody may not take the case.

[00:27:07] Speaker 01:
It could be for issues of liability, perhaps issues of client management and expectations.

[00:27:14] Speaker 01:
But if the award isn't large enough, given the amount of time, cost, and litigation,

[00:27:19] Speaker 01:
There may be several people, lawyers, who just won't take the case.

[00:27:24] Speaker 02:
In theory, I agree with you, Your Honor, and I think that that's exactly the type of case for which the provision is designed.

[00:27:30] Speaker 02:
I don't think that would have been a reasonable judgment for anyone to make in this case where the plaintiff alleges left-side paralysis resulting from.

[00:27:37] Speaker 05:
Let's turn your attention to the record for just your last little bit of time, which is as I understand it.

[00:27:43] Speaker 05:
So Barton initially prescribed his prescription was for five milligrams.

[00:27:49] Speaker 05:
Is that correct?

[00:27:50] Speaker 02:
No, originally it was for 20 milligrams.

[00:27:53] Speaker 05:
I thought.

[00:27:55] Speaker 02:
He gave.

[00:27:57] Speaker 02:
That they were samples.

[00:27:58] Speaker 02:
They were samples, but it was so so Mr. didn't pay for them, but there was a prescription that allowed him to access for the 20.

[00:28:04] Speaker 02:
Yes.

[00:28:05] Speaker 05:
And then.

[00:28:05] Speaker 05:
Martin gave him a prescription for five correct, your honor.

[00:28:15] Speaker 05:
What happened to the prescription for 20?

[00:28:17] Speaker 02:
So the record shows that the last 20-milligram sample that Mr. Derringer obtained was in June 2008, which is 10 years before the alleged injury.

[00:28:28] Speaker 02:
Just candidly for the court, there is a contemporaneous medical record from the day of the stroke that indicates that Mr. Derringer reported to someone at the hospital that that day he had taken two Cialis pills that he obtained from India, which would not be Willie's product.

[00:28:47] Speaker 02:
But reading the record most favorable to Mr. Derringer, what he has testified to is that he took those 20-milligram pills that he still had left over from 2008.

[00:28:55] Speaker 02:
And so at summary judgment, construing the record in his favor and taking his testimony at face value, he was taking 10-year-old 20-milligram pills that he obtained from Dr. Barden.

[00:29:08] Speaker 05:
And that was the one he took on the day he had this?

[00:29:11] Speaker 02:
According to his testimony, yes.

[00:29:14] Speaker 05:
OK.

[00:29:14] Speaker 05:
I'll look later, try to change that.

[00:29:17] Speaker 02:
Subsequent to the summary adverse summary judgment ruling.

[00:29:19] Speaker 05:
Yes, there was motion for reconsideration.

[00:29:21] Speaker 02:
Correct your honor.

[00:29:22] Speaker 02:
But of course, we think the district court was perfectly correct in concluding that that was a clear contradiction of his prior testimony and motivated by the adverse summary judgment decision.

[00:29:31] Speaker 04:
Thank you.

[00:29:32] Speaker 04:
Can I ask one last question?

[00:29:34] Speaker 04:
So because in my mind, I thought the asking whether or not paid counsel accepted seems an inappropriate factor, but you're suggesting that it is a proxy for merits and so that, you know, likelihood of success on the merits.

[00:29:46] Speaker 04:
So it actually is an appropriate factor to consider.

[00:29:49] Speaker 02:
I think in this context, it is and even if the court thought it wasn't a good proxy, I think again, it's at most harmless error because if you look at the plane, why you think it is a good a good factor to consider because in this context, unlike in this case, unlike the sort of standard title seven case where it's not an appropriate consideration, this is a serious injury and it's the norm in these cases to obtain.

[00:30:13] Speaker 02:
contingency fee representation from private counsel in pharmaceutical product liability cases.

[00:30:18] Speaker 02:
And so if expert practitioners decide not to take the case, that actually is a good proxy for merit.

[00:30:27] Speaker 04:
This is an ad hoc explanation, though.

[00:30:28] Speaker 04:
This is not what the district court said.

[00:30:30] Speaker 04:
Post hoc, sorry.

[00:30:33] Speaker 02:
It is post hoc.

[00:30:34] Speaker 02:
I think that

[00:30:35] Speaker 02:
In context, that is the part of the, you know, the, what's motivating this records observation, but correct.

[00:30:43] Speaker 02:
It's not expressly tied to the factor, but I do think at most.

[00:30:47] Speaker 02:
Even if you disagreed with that, it's harmless air for okay.

[00:30:51] Speaker 04:
Okay.

[00:30:53] Speaker 02:
Thank you.

[00:30:53] Speaker 04:
Thank you.

[00:30:53] Speaker 04:
Council.

[00:31:01] Speaker 03:
Just a few follow-up points, Your Honors.

[00:31:04] Speaker 03:
Judge Casabay, I wanted to address your discussion of when to start looking at the likelihood of success on the merits.

[00:31:13] Speaker 03:
And I believe it was either in Clemens or Tilley, one of the cases we cited where

[00:31:19] Speaker 03:
the court looked at likelihood of success on the merits based on the pleadings themselves early on in the case and whether the plaintiffs had stated a cognizable claim for relief.

[00:31:30] Speaker 03:
But kind of more importantly, my friend on the other side was talking about Wilborn.

[00:31:33] Speaker 03:
And in that case, it is true that the court decided that making the request for appointment of counsel wasn't necessary.

[00:31:43] Speaker 03:
But in that case, that was a much more straightforward case in the sense that it was a

[00:31:49] Speaker 03:
case regarding a section 1983 claim regarding a plaintiff who wanted to find out who impounded his car and took his property.

[00:31:56] Speaker 03:
It wasn't a complex pharmaceutical liability case.

[00:32:00] Speaker 03:
And my friend on the other side argued that denial of counsel is besides the point because the facts were supposedly fatal from the start.

[00:32:07] Speaker 03:
But I think that puts the cart before the horse here.

[00:32:10] Speaker 03:
And it relies on a record that was developed almost entirely by Lilly after the denial of counsel.

[00:32:16] Speaker 03:
And here there is the issue of proximate cause, I think, doesn't end this case.

[00:32:23] Speaker 03:
I invite the court to review the language from Dr. Barton's deposition again and the necessary proximate cause standard.

[00:32:29] Speaker 03:
You can see that his answer to Lily's questions are very heavily qualified and in that context that they're asked, they don't properly answer the issue of proximate cause.

[00:32:38] Speaker 03:
In the record at SCR, I think 57 and 360, you see for the purposes of summary judgment, Lily is not going into the issue of specific causation and the mechanism of whether

[00:32:50] Speaker 03:
CLS actually can actually cause the ICH or really disputing the articles that Mr. Derringer had relied on initially in this case.

[00:33:01] Speaker 03:
And I wanted to mention that my friend pointed to Himes v. Sematics.

[00:33:04] Speaker 03:
And I think in that case too, I think the California Supreme Court had also addressed the issue of whether other additional prescribing physicians would be relevant to the issue of

[00:33:15] Speaker 03:
whether or not their decisions, their subsequent decisions would be relevant to that issue of proximate cause and whether those should be considered.

[00:33:24] Speaker 03:
So for example, and I see that my time is up.

[00:33:27] Speaker 03:
Your honor, I'll just stop there.

[00:33:28] Speaker 03:
You know, we asked the court to reverse and allow the jurors to proceed with counsel.

[00:33:32] Speaker 01:
Council, I suppose you failed to make probably the most patently obvious argument, which is your presence has proved positive that pro bono counsel can make a difference.

[00:33:45] Speaker 01:
Yes, Your Honor.

[00:33:46] Speaker 01:
Could make a difference.

[00:33:47] Speaker 01:
Yes, Your Honor.

[00:33:48] Speaker 04:
Thank you.

[00:33:50] Speaker 04:
Pro bono representation is quite able and thank you both for your arguments.

[00:33:55] Speaker 04:
Thank you, Your Honor.

[00:33:55] Speaker 04:
This court is adjourned for the week.

[00:34:02] Speaker 00:
Hear me, hear me.

[00:34:03] Speaker 00:
All persons having had business with the Oracle, the United States Court of Appeals for the Ninth Circuit will now start.

[00:34:09] Speaker 00:
For this court, for this session, it now stands.