Mass Torts Attorney
Erik Walker has concentrated his career in the mass tort litigation, with an emphasis on pharmaceutical products.
Erik earned a B.A. in Finance and Economics from Samford University in 1983, followed by an M.A. in Communication Studies at Baylor University in 1984. After spending several years teaching university students, Erik returned to Baylor and earned his Juris Doctorate in 1994.
Erik is Lead Counsel of the Plaintiffs’ Steering Committee of the MDL proceedings on hormone therapy where he has served as Chair of the Law and Briefing Subcommittee since the beginning of the litigation. He is on all Plaintiffs’ Steering Committees for the six transvaginal mesh MDL and the Fluoroquinolone proceedings. He has served on the Law and Briefing Subcommittees of the MDL proceedings on Vioxx and Granuflo.
Erik is one of the top appellate advocates in the nation, in both written and oral presentation. Mr. Walker briefed and argued nearly every substantive legal issue that was raised to the MDL court in the Hormone Therapy Litigation, handling all appeals of MDL court orders made by any plaintiff to the United States Court of Appeals for the Eighth Circuit, winning every one. Among the most notable are:
Protecting application of the Minnesota statutes of limitations to foreign claims. (Fleeger v. Wyeth, 771 N.W.2d 524 (Minn. 2009)). In 2008-09, Erik briefed and argued to the Minnesota Supreme Court a certified question from the HT MDL court as to whether Minnesota courts would apply the states’ generous statutes of limitations to foreign claims having no connection whatsoever to Minnesota. This was a crucial issue given that more than 4,000 hormone therapy cases had been filed in Minnesota because the cases depended upon application of that state’s four- and six-year statutes. An adverse ruling would also have gutted thousands of lawsuits in other litigations. Many thought winning this appeal was a longshot. But Erik prevailed, and the high court decision was unanimous. Today, Minnesota has a choice of law statute that generally precludes application of its limitations periods to purely out-of-state claims. But at the time it was issued, Fleeger saved thousands of lawsuits on file in numerous types of litigation.
Convincing a federal circuit court of appeals to reverse an MDL court’s Daubert order. (Kuhn v. Wyeth, Inc., 686 F.3d 618 (8th Cir. 2012)). The circuit courts of appeals give tremendous deference to MDL judges’ rulings. And those appellate courts likewise give great deference to district court Daubert rulings. Thus, decisions in which a circuit court reversed an MDL court Daubert ruling are practically unheard of. In the hormone therapy litigation, Erik briefed and argued an appeal to the Eighth Circuit of an MDL court order that precluded expert testimony that short-term use of hormone therapy (that is, two to three years use of the drug) can cause breast cancer. The Eighth Circuit found the order to be an abuse of discretion and the testimony admissible. It reversed summary judgment for Pfizer (successor to Wyeth) and remanded the cases at issue for trial. Several thousand hormone therapy cases involving short-term use were saved.
Secured affirmance of compensatory damages and reversal of the setting aside of punitive damages. (Scroggin v. Wyeth, 586 F.3d 547 (8th Cir. 2009), cert. denied, 561 U.S. 1019 (2010)). In the first plaintiff trial victory in the HT MDL proceedings, the jury found for the plaintiff on all issues and awarded substantial compensatory and punitive damages against both Wyeth and Pfizer (for two different hormone therapy drugs the plaintiff ingested). The MDL court affirmed the compensatory award but set aside both punitive awards. Always prepared to exploit every procedural tool available, Erik beat the defendants to the punch with the court of appeals, filing a notice of appeal challenging the setting aside of punitive damages just two days after the district court’s final order and judgment awarding damages to the plaintiff. This made the plaintiff the “appellant” and permitted Erik to file the first and last briefs on the liability issues and to speak first and last in oral argument. Quite frustrated, defense counsel moved the Eighth Circuit to realign the parties, to no avail. The defendants challenged the judgment on virtually every substantive issue they had raised throughout the MDL proceedings, including federal preemption, Daubert specific causation, statute of limitations, learned intermediary/proximate cause and myriad other issues. The court of appeals found in plaintiff’s favor on all issues. Moreover, the Eighth Circuit found sufficient evidence in the record to support the punitive damages award against Wyeth and ordered a new trial on the matter. The narrative of atrocious facts that Erik persuasively presented in his opening brief appeared in the Eighth Circuit opinion and was perhaps the impetus, in part, for a rare circuit court order – denial of a motion to stay enforcement of the judgment pending appeal to the U.S. Supreme Court. After briefing the response to that motion, Erik briefed plaintiff’s response to defendants’ petition for certiorari review. Our nation’s highest court denied the petition and the case settled shortly thereafter.
Scroggin has since become one of the most cited pharmaceutical appellate opinions nationwide. Erik introduced new concepts on key legal issues — concepts that the Eighth Circuit (and later many other courts) adopted, much to the benefit of the plaintiff bar. Consider, for instance, the learned intermediary defense. Prior decisions had discounted plaintiffs’ testimony that plaintiffs would not have taken the drug at issue had they known of its true risks. Courts found such testimony irrelevant because the key inquiry under state law recognizing the learned intermediary defense is whether physicians would have prescribed the drug if adequately warned, not whether the plaintiff would have taken the drug. But physicians do not operate in a vacuum. They make treatment decisions based on consultation with their patients. As co-counsel at trial in Scroggin, Erik made certain that his colleague questioning the plaintiff’s doctor asked whether the doctor passed on to, and discussed with, his patients all warnings about prescription drugs, and honored the patients’ wishes after such a discussion. He had the attorney ask the doctor whether the doctor had followed that procedure here. The final question was whether the doctor would have declined to prescribe the drug to the plaintiff if that was the plaintiff’s desire.
Given that the doctor answered all these inquiries affirmatively, and the plaintiff testified she would not have taken HT had she known the magnitude of the breast cancer risk, Erik argued to the appellate court that the learned intermediary doctrine had been satisfied. Had defendants adequately warned the prescribing physician, the doctor would not have prescribed the medication. It matters not that his motivation would have been the patient’s wishes rather than his own evaluation. The Eighth Circuit agreed. Scroggin, 586 F.3d at 570. Given that virtually all doctors answer these same questions in the affirmative, the plaintiff’s testimony (by affidavit or deposition on summary judgment or live at trial) has now been deemed sufficient to overcome the proximate cause/learned intermediary defense in numerous post-Scroggin cases when the additional predicate questions to physicians are asked and answered affirmatively (as they almost always are).
In addition to his Hormone Therapy work, Erik has handled many other high-profile cases. Below are a few key examples:
Winnie Pipeline Co. v. Patterson, 141 F3d 1165 (5th Cir. 1998) (briefed and argued)
Representing division of Mitchell Energy Corporation, secured dismissal of an appeal of a district court’s injunction against a state court lawsuit through a series of procedural maneuvers including removing the state suit, securing transfer to the federal district at issue and securing consolidation with the suit in which the injunction issued, thereby making the injunction moot and leading to reversal just four days after oral argument.
ISK Biotech Corp. v. Lindsay, 933 S.W.2d 565 (Tex. App.—Houston [1st Dist.] 1996, no writ) (briefed and argued)
Representing division of Japanese corporation, convinced court of appeals to issue writ of mandamus ordering trial court to compel production of documents of contractors’ work on projects other than the one at issue, securing a new Texas rule that burden is not a justification for nonproduction if the burden is a result of the producing party’s own record keeping decision-making.
Felker v. Petrolon, Inc., 929 S.W.2d 460 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (briefed and argued)
Representing original manufacturer of Slick 50 automotive product, secured affirmance of judgment on jury verdict against former distributor for violation of confidentiality provision of settlement agreement based solely on circumstantial evidence, in particular telephone records showing a string of calls to colleagues shortly after settlement was reached.