Photo of Bexis

Although we aren’t familiar with all the details, we know that state of the art – that is when a particular risk was scientifically knowable – is currently a big deal in Pain Pump litigation.  That litigation isn’t MDLed so it’s being fought on a case-by-case basis in courts across the country.  Given this fact, we thought we’d point out to our readers the recent Ninth Circuit decision in Rosa v. Taser International, Inc., No. 09-17792, slip op. (9th Cir. July 10, 2012), in which the court affirmed (under California law) that the defendant (not a drug company) could not be liable as a matter of law (summary judgment) because the particular risk was not scientifically knowable at the time.  The court’s refusal to give excessive credence to hints and untested hypotheses in medical articles should be useful to pain pump defendants.