I’ve written here before as a dangerous drug attorney about the risk of suicidal thoughts from taking any antidepressant. That risk is why every antidepressant sold in the United States carries a “black box” warning, the strongest the FDA has, about the risk to people under 25. A murder-suicide unfortunately underlies the Tenth U.S. Circuit Court of Appeal’s decision in Rimbert v. Eli Lilly & Co., a ruling in a wrongful death lawsuit brought by Mark Rimbert. Rimbert is the adult son of Gilbert John Rimbert and Olivia Acosta Rimbert. Shortly after starting to take Prozac, Gilbert Rimbert killed Olivia Rimbert and himself. Mark Rimbert brought a wrongful death lawsuit against Eli Lilly, the maker of Prozac. In this appeal, the Tenth Circuit rules that even though Rimbert’s expert witness was properly excluded by a trial judge, that judge was wrong to grant summary judgment to Lilly.
Gilbert Rimbert took Prozac for moderate depression. He committed the murder-suicide after the initial dose was increased, and Mark Rimbert alleges that Prozac caused the violence. The first judge assigned to the case told the parties that while he did not think he needed to recuse himself, he did have personal reasons why they might be uncomfortable. Neither party asked him to recuse himself, and he subsequently denied Lilly’s motion to exclude testimony from Rimbert’s expert witness. Later, more personal issues arose and the judge again offered to recuse himself; Lilly took up the offer. When a new judge was assigned, Lilly repeated its motion to exclude the expert witness testimony, and this time, it was granted. In doing this, the new judge held no new hearing, but relied on evidence from a hearing held by the previous judge. Rimbert moved to reschedule so he could find a new witness. Lilly opposed this and moved for summary judgment, arguing that Rimbert had no case without a witness. Summary judgment was granted, and Rimbert appealed the witness ruling and the denial of a new scheduling order.
On appeal, Rimbert argued that the doctrine of the law of the case should bound the second judge to the first judge’s ruling. The court disagreed, pointing out that Tenth Circuit precedent says decisions can be revisited until a final judgment is entered. It declined to revisit issues it said it had already considered. Nor did the appeals court agree that Lilly was estopped from seeking a new ruling after the case was reassigned because it had not asked the first judge to recuse himself. Prior cases agree that parties should act promptly if they want a recusal, but in this case, the Tenth said, the second disclosure from the first judge was very different from the initial disclosure. Indeed, the second disclosure means estoppel cannot be established in this case, the Tenth said, because it represents a material change in circumstances. However, Rimbert had more luck on the scheduling order. The district court “inexplicably” made its ruling on scheduling as if the expert ruling had been entered under the previous judge, the court said. But because the case had been reassigned and then vacated by the new judge, there was no pretrial schedule for Rimbert to disrupt when he asked to delay the case. Thus, the Tenth upheld the ruling on the expert but reversed the scheduling ruling and sent the case back to trial court.
As a pharmaceutical liability attorney, I think this case is a good example of how an adverse ruling on something as small as scheduling can make a big difference to a case’s success. If the court excludes testimony from an expert and then denies the defendant a chance to find a new expert, the court has essentially decided the outcome without actually hearing the case. Without some kind of inaction or wrongdoing by the party whose expert was excluded, this could be an improper use of judicial discretion. This is especially important in defective drug cases, because they depend heavily on expert witnesses to present complex, scientific facts to the jury, who are not necessarily scientists or medical professionals. As a defective prescription drug lawyer, I am pleased that the Tenth Circuit ultimately let this plaintiff have his chance to prove his case.
If you or someone you love was hurt by taking a medication that was supposed to help, you should call Carey, Danis & Lowe to discuss your legal options and your rights. To tell us your story at a free consultation, send us an email or call 1-877-678-3400 today.
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