Maybe.
From what we can tell from the recent opinion in Race Tires America Inc. v. Hoosier Racing Tire Corp., 2011 WL 1748620 (W.D. Pa. May 6, 2011), that case was one of those e-discovery wars where the parties went at one another hammer and tong, and for long periods e-discovery disputes all-but-obscured the
According to the Supreme Court’s website, the current term is due to end on June 27. With no fewer than six cases of interest still undecided after today’s decision in Smith v. Bayer Corp., No. 09–1205 (U.S. June 16, 2011), it promises to be an interesting couple of weeks. There are only three
If there’s a better place for filing Daubert motions than in the Eleventh Circuit, we don’t know of it. Of course, we’re biased – we had great success with them ourselves in the Seroquel litigation and in the Ephedra litigation before that. Building on the Eleventh Circuit’s landmark decision in McClain v. Metabolife, International, Inc., 401 F.3d 1233 (11th Cir. 2005), defendants have had a lot of success fighting “junk science” peddlers in Eleventh Circuit courts.
And so it was with yesterday’s decision in In re Denture Cream Products Liability Litigation, No. 09-2051-MD-Altonaga, slip op. (S.D. Fla. June 16, 2011). The product is (surprise) a denture cream, Fixodent. The alleged defect is failure to warn that zinc compounds allegedly reduce the amount of copper in the blood, which in turn purportedly cause something called “copper deficiency myelopathy” (called a lot of other things, too, see slip op. at 2 n.3) – which we’ll call “CDM” for short. The very existence of such a thing as CDM is controversial. The court in Denture Cream found that the claims didn’t pass Daubert scrutiny.
The Denture Cream defense team went after this MDL pretty much using the Seroquel model – that is, take the MDL plaintiffs’ best case and beat it on Daubert grounds. The test plaintiff in Denture Cream claimed numbness in her hands and feet (a description suspiciously like diabetic neuropathy) leading to loss of function in her arms and legs, along with various blood abnormalities. Slip op. at 2-3.
These symptoms appeared after the test plaintiff allegedly used Fixodent – a lot of Fixodent.
How much Fixodent?
From the Denture Cream opinion: The test plaintiff supposedly “use[d . . .] two to four 68-gram tubes of Fixodent denture adhesive every week for eight years to hold her dentures in place.” Slip op. at 3.Continue Reading Denture Cream Myelopathy Claims Found Toothless
Finally, a judge with some common sense….
We’ve always thought (and the FDA did too) that the adult suicide/SSRI warning claims were the strongest possible claims for implied preemption in the prescription drug context. C’mon, the FDA looked and looked again at the suicide data for these drugs and found that there was no scientific
We included “Getting Better” among our allusions to Beatles songs in one of last week’s posts. It’s a light ditty from the Sergeant Pepper album and is an interesting example of a Lennon-McCartney song (on some early albums — er, LPs, er CDs — the writing credit for their songs was listed as “McCartney-Lennon”) because the optimistic McCartney-esque “it’s getting better” is counterbalanced by Lennon’s murmuring of “it couldn’t get much worse.” We side with McCartney on this issue and, indeed, on most issues. In the movie Vanilla Sky, the Kurt Russell character describes himself as a guy whose favorite Beatle used to be Lennon but, now that he’s the father of kids and has seen a few things, his favorite Beatle was now McCartney. We agree. Life is tough enough, and we need silly love songs more than primal screams.
One doesn’t have to believe in the myth of human perfectibility to have a healthy respect for progress. In this society, in this culture, at this time, things mostly are getting better. One might not have said that in Europe in 1100 or 1939. We hear a lot of grousing now about how our kids might grow up in a tougher world than ours. But improvements are all around us. Just look at dentistry. And American beer. Probably not preemption law.
Anyway, we should all support efforts to improve on things. Which brings us to the rule against admitting evidence of subsequent remedial measures. In one sense, it’s easy to see why subsequent remedial measures might be relevant to a claim of product defect. If the issue is whether a product should have been safer, does the manufacturer admit as much by making the product safer? A reflexive affirmative answer to that question is facile and foolish. The competitive marketplace is reason enough for manufacturers to try to improve their products. Further, at any given time, there is a state of the art. It’s simply unfair to suggest that a subsequent improvement proves that the earlier version was defective.Continue Reading Getting Better
We’ve always been interested in being allowed to have informal (sometimes called “ex parte”) interviews with treating physicians of the plaintiffs. We think they’re fact witnesses (the most important ones in many, if not most, cases) and that by filing a personal injury lawsuit a plaintiff waives any expectation of physician/patient confidentiality as to the injuries being claimed and their treatment.
Good treating physician testimony can also win a case in and of itself – on the basis of no causation of any purported warning defect under the learned intermediary rule.
We’ve been sufficiently interested in the informal interview question that in late 2008, we even prepared our own 50-state survey of what we understood the states’ law to be on the subject.
Little did we know.
Well, it pays to keep our eyes open. Just the other day the court in the Aredia/Zometa MDL released a valedictory of sorts – an order summarizing that MDL’s activity for the benefit of judges in remand cases. In re Aredia & Zometa Products Liability Litigation, 2011 WL 2182824 (M.D. Tenn. June 3, 2011). We got word of this because the court mentioned its Buckman decisions on fraud on the FDA claims. Buckman citations tend to be interesting, so we have a search that looks for them.Continue Reading An Oldie But Goodie
Earlier this week we posted about the learned intermediary aspects of Shaw v. Bayer, U.S. Dist. Lexis 57057 (S.D. Fla. May 23, 2011), which confusingly bears a completely different caption on Westlaw: In re Trasylol Products Liability Litigation, 2011 WL 2117257 (S.D. Fla. May 23, 2011). We said then that there was more to Shaw/Trasylol than just the learned intermediary rule, and promised to return to the case later.
Now is later.
The alternative holding in Shaw/Trasylol illuminates another lurking causation issue in our sandbox – what happens when the focus turns away from the prescribing physician to the plaintiff. For all the plaintiff side’s attacks on the learned intermediary rule, their clients often don’t fare much better when, for one reason or another, the rule doesn’t apply.
Shaw/Trasylol is exhibit A.Continue Reading When It’s The Plaintiff, Not The Doctor
We’ve blogged before about the split among Utah courts about whether Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), preempts the fraud on the FDA exception to Utah’s statutory bar (Utah Code Ann. §78B-8-203) against punitive damages where the product complies with FDA standards.
The first case, Grange v. Mylan Laboratories, 2008 WL 4813311 (D. Utah Oct. 31, 2008), got it right. Buckman‘s rationale extends to any state-law assertion of fraud on the FDA that could bring about submission to the FDA of unnecessary and unwanted information due to fear of later tort liability.
Indeed, since punitive damages can (and often do) exceed compensatory damages in their amounts, allowing punitive damages based on fraud on the FDA is even more likely to bring about the prophylactic conduct that Buckman decried than the claim in Buckman itself – particularly since punitive damages are frankly intended to “deter” the conduct they punish – and thus create precisely what Buckman held was unacceptable.
The next case, Lake-Allen v. Johnson & Johnson, 2009 WL 2252189 (D. Utah July 27, 2009), botched the issue, for some reason asserting that Buckman involved express preemption. We criticized this patently wrong result here.Continue Reading Utah Preemption Split Deepens