It is the Friday of Memorial Day Weekend.  Barbecues are being fired up.  Beach towels are being scattered on sandy dunes.  Pools are opening (probably still a tad early for a dip in the Mid-Atlantic/Northeast states).   Fittingly, we came across two decisions this week that warrant mentioning but don’t require much heavy lifting.  Perfect blog-material for the unofficial start of summer celebration.

First, we want to report that the Eighth Circuit has affirmed summary judgment in defendant’s favor in another Pain Pump case – Mack v. Stryker, — F.3d –,  2014 WL 1876124 (9th Cir. May 12, 2014) (Minnesota law).  That court joins the Sixth Circuit (Rodriguez v. Stryker Corp., 680 F.3d 568 (6th Cir.2012)) in finding that the defendant manufacturer could not be liable as a matter of law because the alleged risk was not scientifically knowable at the time of plaintiff’s surgery.  Similar to Rodriguez, the Eighth Circuit reviewed 12 articles relied on by plaintiffs to establish that the risk was knowable.  The court (in a 2-1 decision) concluded that these articles proved nothing about the particular device at the time in question.  This state-of-the-art issue is critical in the Pain Pump litigation and this appellate decision certainly tightens the binds on plaintiffs who had earlier pain pump surgeries.

Before our detractors start yelling Krumpelbeck is the law of the Sixth Circuit, here is what the Eighth Circuit had to say about that:

A separate panel of the Sixth Circuit decided a similar case to Rodriguez less than three months later, and it reversed a district court’s decision to grant summary judgment to a pain pump manufacturer without acknowledging Rodriguez. See Krumpelbeck v. Breg, Inc., 491 F. App’x 713 (6th Cir.2012) (unpublished). Krumpelbeck and Rodriguez directly conflict. We decline to consider Krumpelbeck because it is not the law of this circuit and likely not the law of the Sixth Circuit due to Rodriguez’s prior publication. See Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir.2009) (“A published prior panel decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” (quotation and citation omitted)). Additionally, we do not find it persuasive.

Mack, 2014 WL 1876124 at *10 n.6.  Neither do we.

The second part of this post is from the non-Reed Smith side of the blog only.  It is a follow-up to our post on Dilley v. C.R. Bard, Inc., No. 2:14-cv-01795-ODW (ASx) (C.D. Cal.).

Last month the court dismissed the complaint for failure to plead any facts sufficient to sustain plaintiff’s manufacturing defect, design defect, or failure to warn claims.  The court gave plaintiff an opportunity to amend the complaint.  Which he did apparently in name only.   The most recent order in this case starts out by noting that plaintiff’s “Second Amended Complaint suffers from the same pleading inadequacies, which are fatal to his claim.”  Dilley v. C.R. Bard, Inc., No. 2:14-cv-01795-ODW (ASx), slip op. (C.D. Cal. May 21, 2014) (“Dilley II”).   The only new allegations in the complaint relate to the condition of the mesh device after it was explanted.  Dilley II, slip op. at 2.

As to manufacturing defect, the plaintiff pointed to a 10-year study on the degradation of mesh material over time.  Id. at 5.  The court reiterated that plaintiff must “identify how the particular [device] he received deviated from Defendants’ intended design.  A general study does little to advance this pleading requirement.”  Id. at 6.  On design defect, plaintiff appears to have made no new arguments:

Dilley’s design-defect claim fails for the same reason as his manufacturing-defect claim, namely, that he has not been able to identify a design defect.  He has alleged a significant amount of information about the operations he underwent, the pain he endured, and the surgeon’s findings.  But all of that information does not translate into an actionable defect without alleging how the product was defective.

Id. at 6-7.

The biggest change in the complaint was the addition of a completely new cause of action for negligence.  But, this was not authorized by the court’s prior ruling.  Id. at 7.  Even if that were not enough to dismiss the claim, the allegations “wholly failed to put Defendants on notice of the precise basis for their alleged liability that Defendants cannot possibly defend against the claim.”  Id. at 8.  Moreover, the allegations appear to be an attempt to circumvent the court’s prior ruling and the claim overall is duplicative of the negligent products liability claims.  Id. at 8-9 (“Dilley may not recycle his failed claims simply by affixing a different title onto a duplicative claim for which the Court never granted leave to amend).  So many reasons to toss it out.

Finally, this is really final.  The court dismissed the claims without leave to amend finding that despite additional allegations about his injuries and the removal of the device, “Defendants are still left without notice as to how the products contained some sort of manufacturing or design defect.  Since Dilley was manifestly aware of his pleading deficiencies after the Court’s last dismissal Order, there is little reason to believe that he will be able to suddenly cure the deficiencies the fourth time around.”  Id. at 10.

Enjoy the long weekend!