It is with some sadness that we announce the end of Dave Walk’s career as one of our blogging buddies. Dave is leaving Dechert today to take a senior position with the United States’ Attorney’s office in South Jersey – where he will no doubt disavow many, if not most, of the positions he has
We just spotted Placencia v. I-Flow Corp., 2011 WL 1361562 (D. Ariz. April 11, 2011), a pain pump case, in which the court threw out the plaintiff’s latest attempt to keep non-manufacturer competitors in the case. Specifically they claimed that one pump company (DJO) conspired with another pain pump company (I-Flow) “acted as promoters of
We took a look at a case called Birdsong v. Eli Lilly & Co., 2011 WL 1259650 (W.D. Tenn. Mar. 31, 2011), the other day because we were interested in the grounds that the court used to dismiss the by now more-or-less-standard consumer fraud claim that so many plaintiffs indiscriminately throw into their complaints.
Personal injury plaintiffs, at least, shouldn’t.
Plaintiff Birdsong alleged that Eli Lilly’s diabetes fighting drug Byetta….
Wait a minute – diabetes?
Aren’t there a bunch of plaintiffs out there suing Eli Lilly because its anti-schizophrenia drug, Zyprexa supposedly causes diabetes – at least in obese people who would probably contract the disease anyway?
You can cut the irony with a knife. First Lilly gets sued for supposedly causing diabetes. Then, when it has a drug that fights diabetes, it gets sued because that drug supposedly causes something else.
Maybe there’s a drug out there that treats pancreatitis (the injury alleged in Birdsong) that some plaintiff can claim causes schizophrenia. Then there’d be a perfect liability circle – well, triangle, anyway.
But we digress.
Anyway, the important point here is that pancreatitis is a form of personal injury, something that anybody who’s ever had pancreatitis can surely attest to.
The problem is that consumer fraud statutes were never intended to apply to personal injury cases. Most of them include remedies, such as double or treble damages and recovery of attorneys’ fees, that are unknown and antithetical to personal injury jurisprudence.
So even assuming – which we emphatically don’t – that consumer fraud claims have any place in any sort of product liability litigation, their assertion by personal injury plaintiffs is simply out of bounds.
And that’s what the court held in Birdsong, squashing the claim like a DDT-laced eggshell.Continue Reading The Birdsong Remains The Same – Consumer Fraud Statutes & Personal Injury Plaintiffs – Lousy Together
Sorry about not posting anything yesterday. What can we say? We got busy.
We’re still busy today, but we can’t leave our readers in the lurch twice in a row.
We’ve railed about the unfairness of consolidated trials – that is, where a court forces a defendant to trial against a motley crew of plaintiffs with nothing in common save claims that they were injured by the same product – at length before. We’re content with that post stating all the many policy and practical reasons why such consolidations are prejudicial to the defense of cases (which is why plaintiffs seek them and some courts allow them), difficult for jurors to make sense of, and otherwise a bad idea.
In that vein we applaud the decision in Johnson v. Advanced Bionics, slip op., 2011 WL 1323883 (W.D. Tenn. Apr. 4, 2011), which ordered the severance of two previously joined cases for trial. If, as in Johnson, it’s improper to try two same-device cases together, then it’s even worse to mash three, five, or even ten different plaintiffs’ cases into the same three-ringed circus of a trial.
Both the plaintiffs (a “Johnson” group and a “Purchase” (that’s the plaintiff’s last name) group) claimed to be injured by the defendant’s cochlear (that’s part of the inner ear) implants. There was a recall, and predictably enough suits were filed. Both plaintiffs had been implanted with the same implant not quite 18 months apart by different doctors in different hospitals. The failure of each implant was investigated by the defendant and blamed on the same (recalled) component, which allegedly let moisture into what was supposed to be a watertight product. 2011 WL 1323883, at *2.Continue Reading Splitting Up Isn’t Hard To Do
Last week we attended a Food and Drug Law Institute Conference in Our Nation’s Capital. Like other firms, we sponsored a table and, like other firms, we offered trinkets. Call it the Swag Battle. We tempted passersby with clips that magnetically stick to your refrigerator – the perfect way to preserve a bag of potato
We blogged before about the Hopper and Bennett cases, in which courts rejected the argument that off-label promotion necessarily generates “false claims” for purposes of the False Claims Act. Well, we’re pleased to report that the duo has become a trio. There’s a new opinion, and lo and behold, it dismisses yet another action by
Not too long ago a case here in the Eastern District of Pennsylvania, Slater v. Hoffmann-LaRoche Inc., ___ F. Supp.2d ___, 2011 WL 1087240 (E.D. Pa. March 25, 2011), held that an inadequate warning claim against a “monograph publisher” survived the rather loose standard imposed upon fraudulent joinder.
A publisher?
That’s right, or at least that appears to be what this particular defendant, Wolters Kluwer Health, Inc., (“KWH”) does according to its website – it publishes textbooks (including Lippincott), reference products, journals, bibliographic and reference databases, drug information software, point-of-care tools, web-based information systems, online continuing education products, and electronic information.
A publisher can be liable in a product liability suit in Pennsylvania?
That’s a new one on us.
Let’s see how Slater purports to accomplish that feat. First of all, it’s crystal clear under Pennsylvania law that a pharmacist dispensing drugs is not liable for failure to warn about a prescription drug. Coyle v. Richardson–Merrell, Inc., 584 A.2d 1383, 1386-88 (1991); Makripodis v. Merrell–Dow Pharmaceuticals, Inc., 523 A.2d 374, 376-79 (Pa. Super. 1987); Ramirez v. Richardson–Merrell, Inc., 628 F. Supp. 85, 87-88 (E.D. Pa. 1985) (note: these are all Bendectin cases, and Bexis participated in their defense). The only way a pharmacist can be liable is for independently screwing up, such as filling a prescription with the wrong drug.
So the plaintiff didn’t sue the pharmacist.
However, pharmacists now include fact sheets – “patient education monographs” about the drugs they dispense. As Slater recognizes, this isn’t something that tort law mandates. In any event, somebody has to prepare and compile this information. KWH is one of those entities.Continue Reading On Suing Publishers
We’ve been vigilant opponents of plaintiffs who would impose new duties upon drug and device companies with respect to products still in the development pipeline. If plaintiffs are granted access to experimental drugs and devices on the grounds that the risks of using unproven products become irrelevant when no other alternatives exist, we argued that
We’ve posted before about the changes to Rule 26 that, as of December 1 prevent discovery of work product – including prior drafts – that pass between attorneys and their hired experts. Well, we thought you’d like to know that there’s at least one judge out there who thinks that these changes are such a
Last Friday we were treating a client to another stop on our ongoing Philly burger tour. (We know – it’s amazing we’re not big time rainmakers, right?) We agreed that the brioche bun was a marvel, while the patty was just so-so. We’ve had a few sandwiches where the outside bread-bits were way better than