One of the big TwIqbal issues in PMA medical device preemption cases is whether plaintiffs can plead “parallel” claims based on allegations that defendants violated vague FDA regulations (typically involving Current Good Manufacturing Practices, or “CGMPs”) that could be interpreted in more than one way. Those courts that are “hawkish” on preemption (as are we),
It’s an old time Western movie cliché: after a shoot-out commences in a saloon, the piano-player meekly holds up his hands and pleads, “Don’t shoot me, I’m only the piano player.” He had no role in the fight. The phrase got subverted in Francois Truffaut’s second film, Shoot the Piano Player (that’s Tirez Sur la
We don’t particularly like starting our week with an adverse decision; certainly not after a holiday weekend. But, we seem to have stumbled upon a variety of negative decisions to report on this week, so we’ll just dive in and get it over with. Fittingly for the day after Labor Day (we think), we decided to start with a case that centers on employee liability – specifically whether plaintiff had sufficiently pleaded his claims against the non-diverse sales representative so as warrant remand to state court. The court said yes.
The case is Hutchens v. Smith & Nephew, Inc., 2104 U.S. Dist. LEXIS 116839 (N.D. Tex. Aug. 22, 2014). Plaintiff sued the manufacturer and one of its sales reps over an allegedly defective hip implant, including a claim for violations of the Texas Deceptive Trade Practices Act (“DTPA”). Id. at *6. Defendants removed the case to federal court alleging that the sales rep had been fraudulently joined. On plaintiff’s motion to remand, the question before the court was whether the claims against the sales rep survived a Rule 12(b)(6) dismissal-type analysis. Although pending in federal court, the court opted to apply Texas’ more lenient “fair notice” pleading requirement finding that the “standard applicable at the time the initial lawsuit was filed in state court should govern.” Id. at *10. First strike – no TwIqbal.
Moving to the substantive analysis, the court only examined plaintiff’s DTPA claim – only one claim against the sales rep needed to survive to remand the entire case. The DTPA claim allegations as to the sales rep were that he:
exercised substantial control over the provision of warnings and . . . provided inadequate warnings, instructions, or representations to Plaintiffs that were incorrect, violated the . . . [DTPA] and induced Plaintiffs to implant the identified devices, causing Plaintiffs’ harm.
Continue Reading Remand Granted . . . Claim Against Non-Diverse Sales Rep Allowed