November 2014

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The MDL court in West Virginia in the pelvic mesh litigation is continuing to issue pre-trial opinions.  Amongst those issued last week was an opinion addressing 24 motions in limine filed by plaintiffs and defendant, Boston Scientific Corporation (“BSC”).  Eghnayem v. Boston Scientific Corp., 2014 U.S. Dist. LEXIS 153284 (S.D.W. Va. Oct. 28, 2014).  We won’t address all the court’s rulings.  A number of them, as is almost always the case, were denied without prejudice to re-raising them at trial.  But some are either interesting or address issues frequently raised in mass tort trials.  So we discuss them here.

Exclusion of Material Safety Data Sheets (“MSDS”).  Admissibility of MSDS is often an issue in drug and device law litigation.  BSC sought to exclude the MSDS for polyethylene because it was not used in BSC’s mesh product.  They won – for obvious reasons.  The loophole that plaintiffs apparently tried to exploit was that certain BSC employees answered questions at their depositions about the polyethylene MSDS, incorrectly believing that it was the MSDS for a different substance – polypropylene – that is contained in BSC’s mesh product.  The court figured that out and excluded the polyethylene MSDS.

BSC also tried to exclude the MSDS for polypropylene, a material that is in its product.  No luck. BSC argued that a representative from the chemical company that made the polypropylene testified that the MSDS cautionary language was not placed there for scientific concerns.  The court found that testimony to be unclear and that the witness had actually testified that he didn’t know who drafted the MSDS or why it was written.  The court denied BSC’s motion, so BSC went one for two on its attempts to exclude the MSDS.  Id. at *5-8.Continue Reading The West Virginia Pelvic Mesh Court Issues in Limine Rulings

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Express warranty is one of those claims that is often raised in prescription medical product liability actions, but seldom pursued with any intensity.  A lot of express warranty claims drop out right away because most courts, under TwIqbal or equivalent state pleading rules, require plaintiffs to plead the precise language of the purported warranty.  As a bunch of cases from our TwIqbal Cheat Sheet establish, most plaintiffs can’t even do that – demonstrating that the majority of express warranty claims are patently bogus.

Express warranty can assume greater importance in preemption cases. Some courts view “express warranty” as based on voluntarily-made statements that aren’t governed by the FDA and thus don’t involve preemptive “requirements” when made by manufacturers of PMA medical devices.  That sentiment is particularly strong in the Third Circuit.  See Horn v. Thoratec Corp., 376 F.3d 163, 168 n.7 (3d Cir. 2004); Michael v. Shiley, Inc., 46 F.3d 1316, 1325 (3d Cir. 1995). Also, a number of states have tort reform statutes that abolish just about all pre-existing common-law causes of action.  Express warranty is often one of the few exceptions allowed in addition to the statutory cause(s) of action.

The latter scenario was the occasion of the Third Circuit’s excellent smack down of an exclusively express warranty class action in In re Avandia Marketing, Sales Practices & Products Liability Litigation (D’Apuzzo), ___ F. Appx. ___, 2014 WL 5334729 (3d Cir. Oct. 21, 2014).  Plaintiff D’Apuzzo, a New Jersey resident, sought to bring a no-damages class action for purely economic loss to recover “for the higher cost, including co-payments” that he allegedly suffered because the drug in question was more expensive but purportedly no better.  Id. at *1.  New Jersey, however, has a comprehensive product liability statute that both abolishes common-law causes of action and prohibits actions for purely economic loss.  Id. at *1 & nn.7-8.  The statute was clear, and New Jersey authority controlling, so plaintiff appealed only the dismissal of his express warranty claims.Continue Reading Third Circuit: “Safe and Effective” Isn’t an Express Warranty

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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