We did a post the other day about, among other things, the applicability of the TwIqbal federal pleading standard in removed cases. We discussed Maness v. Boston Scientific, 2010 WL 4629984 (E.D. Tenn. Nov. 4, 2010), which held that TwIqbal applies to complaints initially filed in state court but then removed to federal court.
A couple weeks ago, we took a look at the brief submitted by the Solicitor General in the Mensing generic preemption case. If you didn’t have time to read that brief, or our slightly shorter post summarizing that brief, here’s an even shorter recap of the government’s position: the 8th Circuit was right to reject
Folks, before asking for it, make sure you can articulate how discovery into the plaintiff’s use of social networking sites is “reasonably calculated to lead to the discovery of admissible evidence.”
That’s the lesson of this new New York appellate case, McCann v. Harleysville Insurance Co., CA 10-00612, slip op. (N.Y.A.D. 4th Dept. Nov. 12,
We have reported to you occasionally, but not consistently or reliably or intelligibly, about the new obligation of product liability defendants and others to report settlements and other payments on personal injury claims to Medicare authorities. See, for example, our posts titled Boring Stuff We Need to Know and More Boring Stuff We Need to
This is for all of you out there missing (as we do) the wit and wisdom of our blogger emeritus Mark Herrmann. Well, he’s back … er bock. We think, anyway.
We’ve heard it from the horse’s … OK, we’ll say mouth … that Mark will be returning in the near future as
That spoiler alert is tongue-in-cheek. It seems perfectly obvious to us that TwIqbal would apply to a case that was removed to federal court. Law school was a long time ago, but we seem to recall the Supreme Court saying that federal procedural rules govern cases in federal court. Hanna v. Plumer, 380 U.S. 460 (1965), is still good law, right? And it’s not as if the issue hasn’t surfaced before. In Braden v. Tornier, Inc., 2009 WL 3188075 (W.D. Wash. Sept. 30, 2009), the court had no problem applying the federal pleading standard to a removed case. Then again, at least one federal court discussed state pleading standards, leaving us to scratch our cyberheads. See In re Avandia, 2009 WL 1708078 (E.D. Pa. June 17, 2009).
So the clear reasoning in Maness v. Boston Scientific, et al., 2010 U.S. Dist. LEXIS 118748 (E.D. Tenn. Nov. 4, 2010), comes as welcome relief. The plaintiff sued Boston Scientific and other plaintiffs, alleging that an implanted spinal cord simulation system caused her “much pain and suffering and massive infection.” Maness, 2010 U.S. Dist. LEXIS 118748 at *4. The plaintiff brought the case in Tennessee state court, and the defendants subsequently removed the case to federal court on diversity grounds. The issues were whether TwIqbal applied and, if so, whether the complaint met the TwIqbal standard. The answers, according to the court, were Yes and No, respectively.
The court didn’t even get into the old Hanna v. Plumer chestnut. Instead, it took a simpler approach. First, Iqbal held that the Twombly pleading standard applies to all civil cases in federal court. Ashcroft v. Iqbal, 129 S. Ct 1937, 1953 (2009). Second, other cases in the Sixth Circuit had applied Twombly to to federal diversity cases. See, e.g., Wilkey v. Hull, 366 App’x 634, 637 (6th Cir. 2010). Third, the Supreme Court long ago held that the Fed. R. Civ. P. govern proceedings in federal court after removal. Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 438 (1974). Therefore, “[i]t does not matter whether Plaintiff’s claims are based on state law or federal law: all claims, once removed to federal court, are subject to federal pleading requirements.” Maness, 2010 U.S. Dist. LEXIS 118748 at *8-9.Continue Reading Spoiler Alert: TwIqbal Applies to Removed Case
We blogged before about the two “stream of commerce” personal jurisdiction briefs that are currently before the Supreme Court. In both cases the defendants (foreign corporations) are the petitioning party, so their briefs are due first. They’ve been filed. For those readers interested in such questions, here are links:
(1) the defendant/petitioner’s merits brief in
We’re hosting a guest post today – the long title of which is “Can a Manufacturer Be Held Liable Under the False Claims Act if It Delivers Defective Medical Devices to the Government?” This post was contributed by Antonia Guiliana, a partner at Kelly Drye, who, from her online resume knows a lot about
We were dealing recently with a case from Louisiana and we found ourselves once again confronted with that peculiar cause of action, “redhibition.” A redhibition claim is something like an implied warranty claim, see Gomez v. St. Jude Medical Daig Division Inc., 442 F.3d 919, 931 (5th Cir. 2006) (describing redhibition as “Louisiana’s equivalent to a breach of implied warranty”), and a little like a consumer fraud action, but not really either. It’s neither fish nor fowl. Hence our reaction when, over a decade ago we first encountered this type of claim – whiskey tango foxtrot?
Redhibition is a Louisiana peculiarity (like the Napoleonic Code, elections that ignore political parties, and parasol twirling football fans shouting “who dat?“), and the folks way down yonder liked it enough that they excepted redhibition from the Louisiana Product Liability Act, which subsumes just about every other product liability cause of action known to man (and some – “unreasonably dangerous per se” – that aren’t). See La. Rev. Stat. §9:2800.53(5) (defining “damage” to include economic loss except for amounts recoverable as “redhibition”); Aucoin v. Southern Quality Homes, LLC, 984 So.2d 685, 691 n.8 (La. 2008) (redhibition survives LPLA). However, redhibition survives only as to economic losses in products cases. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 251 (5th Cir. 2002) (LPLA “preserve[es] redhibition as a cause of action only to the extent the claimant seeks to recover the value of the product or other economic loss”) (applying Louisiana law); Nelson v. Mylan Pharmaceuticals, Inc., 2010 WL 3339274, at *3 (W.D. La. Aug. 3, 2010) (same).
Redhibition is one of those claims that’s often pleaded (at least in Louisiana) but rarely pursued or proven in prescription medical product cases. But every so often, one must vote for the crook, it’s important.Continue Reading Ready for Redhibition
For those of you who don’t know, Twinkie the Kid is the mascot for that classic American dessert cake, Twinkies. You may also be surprised to learn that Twinkies originally contained banana cream, until bananas were rationed during World War II (interesting), that a nutrition professor recently lost 27 pounds on a “Twinkie diet” (take that, Jared), or that, sadly, Twinkies do not keep forever (goodbye to the urban legend). These are some of the fascinating facts you learn when you look up Twinkies on Wikipedia.
Plaintiffs’ lawyers, though, seem more inclined to sue Hostess rather than revel in the cultural history of the Twinkie. Last week, a federal court in California shot down a putative class action complaining about Hostess’s “100 calorie packs” – not because you don’t get very many mini-Twinkies in those packs, but rather because they contain the following claim: “0 Grams of Trans Fat.” The putative class claimed this trans fat claim was misleading because the baked-goods products contained partially hydrogenated oils, which allegedly are linked to a parade of horribles – “heart disease, diabetes, cancer, obesity, liver dysfunction, Alzheimer’s disease, and female infertility.” Peviani v. Hostess Brands, Inc., Case No. 2:10-cv-02303-CBM-VBK (C.D. Cal. Nov. 3, 2010), slip op. at 2. The putative class brought claims under California and Missouri consumer protection laws, as well as a Lanham Act claim that was doomed from the get-go because consumers lack standing under the “false advertising” prong of that Act. Slip op. at 3, 12.
The consumer protection claims fared no better – they were preempted by the Food, Drug, and Cosmetic Act (FDCA) and its 1990 amendment, the Nutrition Labeling and Education Act (NLEA). When you flip over a package of food to check out the nutritional contents, all the information you see in that Nutrition Facts Panel is heavily regulated by the FDA through the NLEA. And the FDA will consider foods misbranded if the labeling is “false or misleading in any particular.” Slip op. at 7 (quoting 21 U.S.C. § 343 (a)(1)).Continue Reading Twinkie The Kid Guns Down A Consumer Fraud Class Action