On this last day of the 2010, we’d like to wish our readers a happy, healthy, and prosperous new year. To all our defense side readers, we further wish you success in winning your cases.
Now, because we are the Drug and Device Law Blog, we can’t just leave our post just at that. Two
A few weeks ago, a judge for the Southern District of Ohio, applying Ohio law, granted in part the defendants’ summary judgment motion in a fentanyl patch case. Importantly, the court killed the plaintiff’s core failure to warn claim, as well as smacking down a “fraud on the FDA” claim in cursory fashion. Miller v.
We hope all our readers had excellent holidays, didn’t get stranded in the snow (here on the US East Coast), and received lots of desired presents due to what the economic stats we’ve seen are saying has been a better than expected retailing season. That is, it’s better than expected if you’re a retailer or a recipient. For those of us who have to pay the bills … well, we won’t go there and ruin the good cheer.
Good cheer it is, too, as today’s post is devoted to our favorite drug/medical device judicial decisions of 2010. There’ve been a raft of good decisions, although none from the United States Supreme Court, for all us practitioners on the right (in more ways than one) side of the “v.” to be thankful for. Indeed, we confess that depending on the day, any of the first three cases could have been ranked as number one. We’ve changed the rankings ourselves since we first started thinking about this list a couple of weeks ago.
So here are our best of 2010 – the decisions that had us happily typing away on “breaking news” and other posts throughout the year.
1. UFCW Local 1776 & Participating Health & Welfare Fund v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010). Stick a fork in economic loss class actions derivative of supposed product liability defects – they’re done. That’s what we thought when we first read this widely anticipated decision, which reversed the #2 worst decision of 2008. Third party payers cannot prove reliance on a classwide basis even under what plaintiffs considered their last, best hope of a theory, RICO. Try as they might, purveyors of class actions can’t escape the intensely individualized medical decisionmaking process that underlies any prescription of drugs (and presumably medical devices). Whether it’s called “reliance” or “causation,” allegedly inadequate information must affect a doctor’s prescription decision, and the gambit of using TPPs as proxies doesn’t obscure that fact. We ultimately put this Zyprexa decision first because of its broad implications for all of our clients, particularly if the result had gone the other way. Unless the Supreme Court were to change class action law adversely in the pending Dukes case (unlikely), we don’t think there’s much of a future for class actions (economic loss or otherwise) based upon supposed safety defects in drugs. We discussed the decision as breaking news here and in more detail here.
2. Bryant v. Medtronic, Inc., 623 F.3d 1200 (8th Cir. 2010). Here, we had to decide whether to go with an industry-specific, or a state-specific case. Then last week the Seventh Circuit forced our hand by dropping Bausch on us like a humongous lump of coal into our stockings. That moved Bryant up because, if not for Bryant, the entire post-Riegel preemption model we’ve been advocating for two years might have been knocked down by one adverse circuit decision (shades of Mason). But with Bryant as the first appellate decision, we’ve got a direct circuit split, with perhaps an avenue to the Supreme Court (and the Medtronic folks must be tearing their hair out watching their competitors mess up the law). Anyway, Bryant demonstrates the power of preemption, affirming our #7 best case of 2009 and defeating an entire MDL at a stroke. The opinion is great on preemption principles, particularly the interplay between express and implied Buckman preemption in parallel violation claims – something we’ve consistently advocated on this blog. Bryant is an absolute must read for any PMA medical device defendant thinking about a preemption motion. For good measure the Eighth Circuit also trashed the “suspect motives” behind the plaintiffs’ attempt to recuse the judge. And to think, but for a fortuitously delayed settlement, Bryant almost never saw the light of day. We rather gleefully blogged about Bryant here.Continue Reading Top Ten Best Prescription Drug/Medical Device Decisions Of 2010
As Andy Williams sings, “it’s the most wonderful time of the year.” This year we made one of those English puddings. We poured cognac over it, set it on fire, and carried it proudly to the table. The flavor was awful (like a barbecued fruit-cake) but the presentation was splendid. Nobody was hurt, putting aside
In almost every jurisdiction in the U.S., an award of damages to compensate an injured plaintiff for wages the plaintiff would have earned in the future must be discounted to present value. In oversimplified form, the basic idea is clear: if you give someone in one lump sum the total amount of wages that the
We’re doing it again. At the end of the year, we like to look back over where we’ve been for the past twelve months. As always, that long and winding road had a few bumps along the way. It’s the jarringness of those bumps that we’re rating today. That’s right, just as we’ve done for
Our esteemed blogger emeritus, Mark Herrmann, has some things to say about blogging as a business tool, over at his in-house counsel blog on Above The Law. Needless to say he uses us as an example. We’re not going to get into personal details (we’ll leave that to Mark), but after reading his post
Twenty-one million dollars is an awful lot of moola. Sure, it probably won’t even buy you one (at least towards the end of that contract) year of Cliff Lee befuddling opposing batters (yeah, we’re still feeling good about that). But in almost any situation, $21 million would seem like a pretty significant chunk of change.
But context is everything.
So we think everyone would agree with us, that $21 million seems like a relatively tiny sum compared to the catastrophic devastation wrought by Hurricanes Katrina and Rita a few years ago. Yet $21 million was the insurance policy limit for a group of defendants in Katrina-related litigation. And, not coincidentally, $21 million was the amount to be paid to proposed class members pursuant a “limited fund” class that was just bounced by the Fifth Circuit. See In re Katrina Canal Breaches Litig., No. 09-31156, slip op. (5th Cir. Dec. 16, 2010).
Our skepticism meters zoom whenever we hear “limited fund” in the same sentence as “mass tort.” It all goes back to the Bone Screw Litigation, where the fix was in over a supposed “limited fund” class action involving one of our co-defendants. The trial court let both sides get away with it, see In re Orthopedic Bone Screw Products Liability Litigation, 176 F.R.D. 158 (E.D. Pa. 1997), and any objectors were either bought off or scared off. Within a week of the settlement becoming final – guess what happened? The supposed “limited fund” company was sold for three times the amount of the [fill in adjective] limited fund. We concluded then that limited fund settlements in mass torts are rife with potential for abuse, and in Katrina Canal, the court of appeals pretty much agreed with us.
The decision provides valuable lessons, not only for parties trying to craft “limited fund” settlement classes, but for lawyers settling any kind of class or mass action requiring judicial approval.Continue Reading Hurricane Settlement An Imperfect Storm
On Friday we supplied you with the key takeaways — that the West Virginia Supreme Court of Appeals decided: (1) that an action under the West Virginia Consumer Credit and Protection Act alleging affirmative misrepresentation requires proof of reliance, and (2) that a private cause of action under that statute does not extend to prescription
We’ll have a full report on Monday, but the decision of the West Virginia Supreme Court of Appeals in White v. Wyeth, No. 35296, slip op. (W.V. Dec. 17, 2010), is sufficiently important that we had to throw something up today. The two most important syllabus points say it all:
5. A private cause