We previously blogged about the Pennsylvania Superior Court vacating an 8-figure in Polett v. Zimmer and remanding for a new trial due to multiple reversible errors committed at the first trial. Unfortunately, nothing’s ever easy in our extremely pro-plaintiff Superior Court. We’ve been informed that Polett will now be reargued before the entire en banc
Some time ago we were highly critical of a potentially dangerous expansion of liability for failure to warn to publishers of medical literature.
That’s right, publishers.
In our prior post we went after Slater v. Hoffman-La Roche, Inc., 771 F. Supp.2d 524 (E.D. Pa. 2011), for giving credence to a claim that a publisher of medical reference products could somehow be liable under Pennsylvania law for alleged errors and omissions in the content of materials written by others. Slater did not say that there was such a claim, mind you. It only speculated (in the absence of any contrary precedent) that there could conceivably be such a claim. Slater was an fraudulent joinder case. The publisher defendant, Wolters Kluwer, had the misfortune of being headquartered in Pennsylvania. That meant it was non-diverse, so if the plaintiffs could merely hang a “colorable” claim on it, the case would have to be remanded to the Philadelphia Court of Common Pleas – at the time the #1 ranked Judicial You-Know-What according to ATRA.
Philadelphia isn’t ranked #1 anymore.
The Philadelphia Court of Common Pleas Complex Litigation Center (home to Philly’s notorious mass tort programs) is under New management.
As in Judge Arnold New.
Judge New recently issued an opinion, A.B. vs. Ortho-McNeil-Janssen Pharmaceuticals, 2013 Phila. Com. Pl. Lexis 84 (Pa. C.P. Phila. Co. April 5, 2013), sticking a much deserved fork in the concept of publisher liability. A.B. involved alleged injuries from certain atypical antipsychotic drugs. In addition to the manufacturer of the drug, the plaintiffs sued two publishers of medical information, Excerpta Medica and Elsevier. The publishers recently took the
bull***t by the horns and moved for summary judgment, on the ground that their role in “publishing scholarly books and journals” (Elsevier) and “developing medical literature . . . including articles published in peer-reviewed journals and posters and abstracts presented at medical conferences” (EM), id., at *4-5, couldn’t possibly give rise to liability to the plaintiff.Continue Reading Publisher Liability Rejected By Philadelphia C.P. Court
We are looking forward to this week’s DRI Drug and Medical Device Seminar and the opportunity to get together with so many old friends. We’ll learn some new things, relearn too many old things, maybe learn some wrong things, and listen to judges tell us how we should be able to work out most of
Last year, we blogged about the District of New Jersey’s dismissal of a putative class action involving the margarine substitute, Benecol Spread. See here. In celebrating the win, we focused on the defense decision to lead with standing – a less often used argument than heavy-hitters like preemption or Twiqbal. A bench player,
The Indiana Court of Appeals recently issued an opinion applying the section of Indiana’s Product Liability Act (IPLA) that, under certain circumstances, creates a rebuttable presumption against a finding of defect or negligence in product liability actions. See Gresser v. Dow Chem. Co., 2013 Ind. App. LEXIS 204 (Ind. Ct. App. Apr. 30, 2013).
Every now and then we come across something new and interesting that, frankly, we hadn’t thought of ourselves. That’s how we felt when we read the recent opinion in Boudreaux v. Corium International, Inc., C.A. No. :12-cv-2644-M, slip op. (N.D. Tex. May 7, 2013). We mentioned the same sort of thing a few years
We read rulings under the Federal Tort Claim Act about as often as we read bench trial rulings or rulings from the District of Montana. Or rulings where a judge says he is retiring in two days. That is, with a frequency somewhat below what our diminishing memory can recall. In Holtshouser v. United States
Our last few weeks have been filled with depositions. Mostly we have been defending them. And mostly we have exited the proceedings feeling they were non-events. That is precisely how you want depositions to be when you are defending. No doubt many of you have seen videos of crazy depositions, with bellicose attorneys, mask-wearing family members, or witnesses who artfully boil down their entire testimony to two words. Those depositions happen to other people, and we are glad of it.
When we were fresh out of law school (supply your own interpretation of “fresh”), depositions were viewed as the first stepping-stone to being a real litigator. Before our first deposition, in a case involving stolen dirt, we must have read every practice guidebook in sight. We sought out advice. We perused stray deposition transcripts lying around the office. And then the big day arrived. The deponent arrived with a friendly handshake. We didn’t expect that. He wore a bolo tie. He was a well-tanned septuagenarian. Whether he was also a dirt thief (a big deal if you want to build houses in Palm Springs) was the issue at hand. But first some preliminaries. We traipsed through the usual admonitions. When we arrived at the question about whether the deponent was taking any medication, this is what we got: “Why, yes, young man, I am. As you have no doubt noticed, I am an elderly man. But I am also a man of appetites. I still very much enjoy the physical act of love. To maintain my desired level of amorous activity [he really did talk a little bit like Foghorn Leghorn] I take hormone pills throughout the day. Shall I tell you how they work?” Um, no thanks. We were stumped. Sometimes young lawyers learn the dance-steps but do not know the reasons for them. It was not obvious to this particular young lawyer how to follow up on the information about the passion pills. Would the deponent need an especially long mid-afternoon break? (Cue the Starland Vocal Band.) We never did find out for sure what happened to that dirt.
Nowadays we think we genuinely know what we’re doing at depositions. And this confidence has earned us the right to be cranky. Hardly a deposition takes place where we do not grow exasperated with our opponents. Whether we are taking or defending depositions, within fifteen minutes we become convinced that the advocate across the table from us is a dunce. It is hard not to throw something when, after we launch a perfectly sensible question seeking concrete, percipient knowledge on the part of the witness, the defending (some insist on using the term “guarding”) lawyer sees fit to interject this bit of deep advice: “If you know.” Nothing shouts out bush league like “if you know.” Look, shortly after we ask about medications (yes, we still do that, and now we even know why), we tell the witness that we are seeking personal knowledge, not guesses or speculation. There is no need to remind witnesses that they should answer only if they know. When we are greeted with that spurious non-objection — a transparent effort to coach the witness to say “I don’t know” — we usually hearken back to the admonition about personal knowledge and inquire whether the witness recalls it or whether a blunt instrument has descended upon the witness’s noggin so as to render that poor individual incapable of remembering or understanding that rather elementary point. Sadly, such an act of shaming seldom deters the litany of “if you know”s.Continue Reading Deposition Lojinks
You know we love removal – 63 posts and counting. But, before you cast this post aside as another discussion of fraudulent joinder, removal before service, or principal place of business, we chose to blog about Franklin v. Codman & Shurtleff Inc., 2013 U.S. Dist. LEXIS 61307 (N.D. Tex. Apr. 30, 2013) because it
This post comes from only the Dechert side of the blog, as Reed Smith is involved in this litigation.
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The New Jersey NuvaRing litigation, which involves a combination hormonal contraceptive, recently produced an opinion that granted the defense summary judgment in seven separate cases. That’s a pretty big win for the defense. But a broader win can be found in the reasoning of the court. The defense didn’t win on one overarching argument. It won for a variety of reasons.
Failure to Warn
Two of the seven cases were dismissed because the court found that the NuvaRing label’s warning on venous thromboembolism (VTE), the alleged side effect, was adequate as a matter of law. The plaintiffs in these two particular cases were New Jersey residents, and so the court applied the New Jersey Product Liability Act (PLA). The PLA contains a presumption for adequacy of any FDA-approved warning:
If the warning or instruction given in connection with a drug or device or food or food additive has been approved or prescribed by the federal Food and Drug Administration . . . a rebuttable presumption shall arise that the warning or instruction is inadequate.
Slip Op. at 31 (citing NJSA §2A:58C-4). New Jersey caselaw has established two types of evidence that can rebut this statutory presumption, both relate to post-approval actions by the defendant: (1) evidence that the defendant deliberately concealed or failed to disclose after-acquired knowledge of harmful effects of the drug (the Perez exception), or (2) evidence that the manufacturer engaged in an economically-driven manipulation of the post-market regulatory process (the McDarby exception). Id.Continue Reading The New Jersey NuvaRing Litigation Summary Judgment Decision