Today is the birthday of Adam West, the great television Batman, so we are pleased to see a court deliver a Bam! Pow! and Socko! to another attempt to escape Riegel preemption via a bogus parallel claim. The case is called DeSabio v. Howmedica Osteonics Corp., 2011 U.S. Dist. LEXIS 103288 (W.D.N.Y. September 13,
A couple of recent preemption developments warrant mention.
In Horn v. Boston Scientific Neuromodulation Corp., 2011 U.S. Dist. Lexis 102164 (S.D. Ga. Aug. 26, 2011), the defendant, a manufacturer of a PMA medical device, won preemption of a claim that’s often lost, and lost preemption of a claim that’s often
A reader recently recommended that we take a look at Rounds v. Genzyme Corp., ___ Fed. Appx. ___, 2011 WL 3925353, slip op. (11th Cir. Sept. 8, 2011) (applying Florida law), even though it’s unpublished. We’d blogged about this case when the district court first dismissed it, but we confess we’ve missed the affirmance
Thanks to FDA guru, regular reader, and occasional correspondent, Arnie Friede, we’re aware of an interesting ethical development in the District of Columbia. It has to do with one of our recurrent topics – the ability of defense counsel to investigate their cases through informal contacts with probably the most relevant witnesses in the
According to the novels penned by a certain Mississippi lawyer (and the movies based on said novels), corporate defendants are always bad, their lawyers are worse, and juries end up pounding both. Think of Jon Voight during his closing argument in The Rainmaker, wagging his finger at the jury while scolding them to “be
In partnership with the FDA, the University of Pennsylvania (where some of us went) is developing a Master’s degree program in Regulatory Science. Since a lot of our readers are interested in FDA issues, either from a regulatory or from a litigation standpoint, we’ve been asked to help the University out in designing this program.
We thank Eamon Joyce at Sidley for alerting us to an interesting forum non conveniens decision out of the Fourth Circuit: Tang v. Syntura International, Inc., No. 10-1487, slip op. (4th Cir. Sept. 6, 2011). We’ve had our own litigation interest in this subject for some time, as Dechert has been involved for more years than some of us care to count in the Blood Products multidistrict litigation (mostly) in Illinois. That’s produced a number of favorable forum non rulings. See Chang v. Baxter Healthcare Corp., 599 F.3d 728 (7th Cir. 2010) (Taiwanese cases sent back to Taiwan); Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009) (Argentinian cases sent back to Argentina); In re Factor VIII or IX Concentrate Blood Products Litigation, 484 F.3d 951 (7th Cir. 2007) (British cases sent back to the UK); In re Factor VIII or IX Concentrate Blood Products Liability Litigation, 2008 WL 4866431 (N.D. Ill. June 4, 2008) (Israeli case sent back to Israel); In re Factor VIII or IX Concentrate Blood Products Liability Litigation, 408 F. Supp.2d 569 (N.D. Ill. 2006) (Italian and German cases sent back to there respective countries), aff’d on somewhat other grounds, 484 F.3d 951 (7th Cir. 2007) (only the Brits appealed); Doe v. Hyland Therapeutics Division, 807 F. Supp. 1117 (S.D.N.Y. 1992) & Dowling v. Hyland Therapeutics Division, 767 F. Supp. 57 (S.D.N.Y. 1991) (both Irish cases sent back to Ireland).
See also Dowling v. Richardson-Merrell, Inc., 727 F.2d 608 (6th Cir. 1984) (DES – back to UK); Lin v. Ortho-McNeil Pharmaceutical, Inc., 2011 WL 3566855 (N.D. Ohio Aug. 12, 2011) (oral contraceptive – back to Taiwan); Lee v. Johnson & Johnson, 2011 WL 3566859 (N.D. Ohio Aug. 12, 2011) (same); In re Fosamax Products Liability Litigation, 2009 WL 3398930 (S.D.N.Y. Oct. 21, 2009) (Fosamax – back to England); Miller v. Boston Scientific Corp., 380 F. Supp.2d 443 (D.N.J. 2005) (stent – back to Israel); Ontario Ministry of Health v. Shiley, Inc., 858 F. Supp. 1426 (C.D. Cal. 1994) (heart valves – back to Canada); Ledingham v. Parke-Davis Division, 628 F. Supp. 1447 (E.D.N.Y. 1986) (dilantin – back to Canada); Stangvik v. Shiley Inc., 819 P.2d 14 (Cal. 1991) (heart valves – back to Scandinavia); In re Vioxx Litigation, 928 A.2d 935 (N.J. Super. App. Div. 2007) (Vioxx – back to the UK).Continue Reading Imported Chinese Litigation Returned To Sender
Just a note about Malbroux v. Jancuska, 2011 U.S. Dist. Lexis 96590 (W.D. La. Aug. 29, 2011), an otherwise forgettable opinion throwing out medical device claims on the basis of preemption under Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). Malbroux is forgettable: (1) because it’s a pretty much routine application of Riegel