Is it still news when Medtronic wins a preemption motion for one of its PMA devices? We think so, so we’ll tell our readers about Stengel v. Medtronic, Inc., No. CV 10-318-TUC-RCC, slip op. (N.D. Ariz. Nov. 9, 2010).
The product was a Class III pain pump that received initial PMA in 1988 and
Anybody with a pulse, a computer, and a connection to the internet has heard the warnings: be careful what you post on Facebook, MySpace, and other social network sites. That blow-by-blow account of your victory in the Tenth Intramural Beer Pong Championship can come back to haunt you. Those pictures of you clothed only with
We’ve already posted a couple of times about the Thorogood v. Sears, Roebuck & Co. case. Last week we put up a short post on the case. Before that, we contrasted Thorogood with some class certification opinions by Judge Posner that we disliked. The Thorogood case concerns washing machines, not drugs or devices, but the case gave Judge Posner the opportunity to say a load of things about class actions that we’ll likely be citing a lot over the next few years. The latest iteration is especially splendid, full of writing that is clean and well-starched.
Plaintiffs filed a purported class action on behalf of a half million purchasers scattered across 28 states plus the District of Columbia. The claim was that Sears falsely advertised that the drums in Kenmore washers were made entirely of stainless steel. Because part of the drum was actually not stainless steel, so the allegations went, clothes might acquire rust stains. Slip op. at 5. Moreover, calculation of actual damages would vary from consumer to consumer. Id. at 7. In short, individual, not common, issues predominated. That was the result of Appeal Number 1: no class.
After decertification, Sears made an offer of judgment for Thorogood’s suit in the amount of $20,000. That offer seems fairly generous, given that the maximum damage recovery under Tennessee law was $3,000. The $20,000 included a little something for attorney fees. But the district judge held that plaintiffs’ attorneys did not deserve any attorney fees and dismissed the case. Plaintiff’s attorneys appealed, claiming they had racked up $246,000 in attorney fees. The Seventh Circuit held that the claim for attorney fees was “beyond weak” because plaintiff had brought “a threadbare, idiosyncratic claim worth at most $3,000” and the effort to escalate it into a nationwide class had been “a flop.” Slip op. at 8-9. Sears shouldn’t have to subsidize such a flop and had merely offered to pay nuisance value. That was the result of Appeal Number 2: no attorney fees.Continue Reading There’ll Always Be Posner: Final Rinse
One way that some plaintiffs seem to be responding to TwIqbal is simply to make up the facts needed to plead a plausible claim. That happened in Cornwell v. Stryker Corp., 2010 U.S. Dist. Lexis 116824 (D. Idaho Nov. 1, 2010). Cornwell involved a PMA medical device (a total hip implant), so obviously preemption
The other day we found ourselves in the unusual position of being sent copies of the same document by both sides of the litigation. Both Linda Maichl, at Ulmer & Berne, who represents generic drug manufacturers, and Justinian Lane, who hosts a plaintiff-side blog, sent us copies of the Solicitor General’s
We could fill this blog post with not-so-subtle references to Goofy, Mickey Mouse, or, for you old-timers, Oswald the Lucky Rabbit, but frankly, we’re still a little alarmed at what the Southern District of Florida did the other day in Nelson v. Mead Johnson Nutrition Co., __ F.R.D. __, 2010 WL 4282106 (S.D. Fla. Nov. 1, 2010). The case involved a putative class action alleging that Mead Johnson violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) by misrepresenting that its baby formula, Enfamil, contained two ingredients that a competitor’s formula didn’t. Id. at *1. The plaintiff alleged that this misrepresentation ultimately led her and the class to buy Enfamil, and that the class suffered damage by paying more for Enfamil, or buying Enfamil instead of lower-priced brands. Id. To borrow the political meme of the moment, the class complained the price of Mead Johnson’s formula was “2 damn high.”
Now, defense-minded class action lawyers are probably chomping at the bit already. Sounds like there are a host of individual causation issues lurking here – for example, why each class member chose Enfamil vs. another formula, or whether class members “knew the truth” but bought Enfamil anyway. If the plaintiffs’ causation theory is that the misrepresentation caused the class to choose a more expensive product rather than a cheaper product, that theory requires an individual inquiry into what each class member knew, what he or she saw/heard/read, and why he or she made a particular purchasing decision. And the “causation workaround” – the defendant’s misrepresentations inflated the price of the product, and thus the “fraud on the market” excuses any need to prove a causal nexus between the deception and the harm – has been rejected in the consumer fraud context in a number of cases across the country.
The Nelson court just blew off these concerns, in a decision that was, well, goofy (we couldn’t resist). The court started with the “reliance” strawman: FDUTPA does not require plaintiffs to prove individual reliance. Id. at *6-7. OK. But what about causation? The statute requires plaintiffs to prove a loss “as a result of” the deception. The Nelson court concluded that causation wasn’t a hurdle to certification either; “[t]he class members…need not submit individualized proof to establish causation.” Id. at *7. The court’s decision on this point relied heavily on a 2000 decision of an intermediate appellate Florida state court – Davis v. Powertel, 776 So.2d 971 (Fla. App. 2000) – that the court found “particularly persuasive.” Id. at *2 n.2. So what did Davis say that the Nelson court found so persuasive? “Because proof of reliance is unnecessary, the plaintiffs’ inability to show reliance in every case cannot be used to justify a finding that individual issues will predominate over the class claims.” Id. at *7 (quoting Davis, with our emphasis).Continue Reading Florida No Disney World For Consumer Fraud Class Action Defendants
We’ll have more about it later, but anybody seeking to defend repetitive class action litigation should look at Judge Posner’s latest, Thorogood v. Sears Roebuck & Co., No. 10-2407, slip op. (7th Cir. Nov. 2, 2010), filed yesterday. The plaintiff filed a meritless – ordered decertified by a prior Seventh Circuit opinion – consumer
Some lawyers in the East Coast and West Coast – you know who you are – tend to be dismissive of decisions from the middle of the country, referred to with disdain as “flyover country.” In our experience, the assumptions of the superiority of the coastal courts and the inferiority of landlocked courts are unwarranted.
It was a dark, non-stormy, and quiet Halloween night at our home. Maybe a lot of the kids in the neighborhood have grown up beyond trick-or-treating. We had way too much left-over candy. But this year we were smart because we bought candy we don’t like. By contrast, last year we ended up with two