Motions in limine were decided (or not) recently in Wolfe v. McNeil-PPC, Inc., 2012 U.S. Dist. Lexis 2160 (E.D. Pa. Jan. 9, 2012). The defendant did pretty well, so here’s a brief listing of the highlights (this isn’t everything, as some were case specific, not decided, moot, or simply boring).
In MDLs, federal courts have on an unconscionable number of occasions set up “common benefit funds” to ensure that the other side gets paid – even from the settlement of cases not before them. We’ve decried this practice as ultra vires on several occasions. Precedent that actually analyzes this issue rejects such power. In
Dr. Martin Luther King, Jr. once said, “Justice denied anywhere diminishes justice everywhere.” Maybe simply setting out that quotation, and not-so-simply meditating on it, would constitute an appropriate gesture on this day of service.
But, as usual, we have a few extra words to say before returning to the observances and pleasures of the holiday.
Late last night we received this message from a correspondent (who will remain anonymous since we lack permission):
Hopefully the groundwork for getting Conte thrown-out has been laid. Only a matter of time. And with any luck we’ll have an opportunity some day soon.
Getting a message like that makes us sit up a little
We recently read the pain pump decision, Creech v. Stryker Corp., 2012 WL 33360, at *5 n.6 (D. Utah Jan. 6, 2011). Most of the opinion addresses pretty much mundane disputes on heavily fact-bound questions: (1) whether the risk was scientifically knowable as of the date of this plaintiff’s injury, and (2) whether the
Boring title, but accurate. Here’s the latest.
First, Medtronic won another one the other day. Duggan v. Medtronic, Inc., ___ F. Supp.2d ___, 2012 WL 45503 (D. Mass. Jan. 10, 2012), involved an insulin delivery system. It had a number of components, including the pump, which physically moved the insulin from where it’s stored into the body. Plaintiffs alleged that the pump malfunctioned and caused undisclosed injuries.
The insulin system was a PMA device, so the defendants moved for summary judgment on grounds of preemption. Plaintiffs targeted the pump, rather than any other aspect of the system, because the pump had originally been §510k cleared (unpreempted under Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)) – by itself – in 2004. The insulin delivery system predated the pump, and was PMA approved. By PMA supplement in 2006, the FDA approved incorporation of the pump into the system. The plaintiff was prescribed that system. Duggan, 2012 WL 45503, at *3-4.Continue Reading Medical Device Preemption Developments
On January 25, 2012 (Bexis’ birthday), between 12:00-1:00 p.m. (EST), our friends who publish the Physicians Desk Reference are putting on a free webinar entitled “‘Duty-To-Warn’ in the Digital Era: Emerging Issues.” You can register for it online here.
And did we mention, it’s free?
Here’s a brief description of the subject matter:
Manufacturers
A long time ago, when we were just starting out as defense hacks, a mentor told us to beware of the double-standard that lawyers representing big corporations face: we are expected to be virtually perfect in our compliance with every possible rule (even rules whose existence and/or application are doubtful) while plaintiff lawyers can blow
We just received from defense counsel Matt Wender at Pietragallo Gordon a copy of Moore v. Mylan, Inc., No. 11:1-CV-03037-MHS, slip op. (N.D. Ga. Jan. 5, 2012). It’s another post-Mensing case holding: (1) that the plaintiff can only sue a maker of the drug s/he took (whatever that might turn out to be