April 2015

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We’re not law professors.  We don’t typically read opinions with an eye to where they fit (or don’t) in some grand jurisprudential scheme.  We’re litigators, so we read opinions with an eye to whether they can help our clients win.

Thus, when Johnson v. American Towers, LLC,___ F.3d ___, 2015 WL 1321535 (4th Cir. March 25, 2015), popped up in one of our automatic searches (due to a stray citation to Riegel v. Medtronic, Inc., 552 U.S. 312 (2008)), we were inclined to pass it by, since preemption under the Federal Communications Act is not exactly something that arises in our sandbox very often.  If you have an FCC tort preemption issue, you’ll want to read Johnson for that reason, but our discussion here won’t interest you much.Continue Reading “Common” Defense No Bar to Removal in Preemption Case

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This post is from the non-Reed Smith side of the blog.

Today’s case is no “mixed bag,” no cautionary tale. We don’t have to look for a silver lining or a rose among the thorns.  Rather, Shuker v. Smith & Nephew, PLC, 2015 U.S. Dist. LEXIS 43141 (E.D. Pa. Mar. 31, 2015) is one of those cases that just keeps giving and giving and giving.  We’ve got component parts, preemption, off-label use, failure to report, pleading deficiencies, and plenty of other small but delightful nuggets. So we’ll get straight to it.

In April 2009, plaintiff underwent a total hip replacement. Id. at *12.  Plaintiff eventually had to have multiple revision surgeries to correct and alleviate complications from the original hip replacement.  The lawsuit ensued alleging claims for  (1) negligence/negligence per
se, (2) negligence based on violations of FDA regulations and FDCA provisions, (3) strict products liability, (4) breach of express warranty, (5) breach of implied warranties of merchantability, (6) fraud, and (7) loss of consortium.  Id. at *39-40.Continue Reading A Jam Packed Hip Implant Case From the Eastern District of Pennsylvania

Photo of Rachel B. Weil

A couple of weeks ago, we saw a concert by the Fab Faux (we love that name), widely considered to be one of the best Beatles cover bands touring today.  A Fab Faux concert is a tribute, not an impersonation.  For one thing, there are five band members.  These are phenomenal musicians and true historians of Beatles music and lore who spare no detail in their quest for accurate renditions of all of the classic songs  When we closed our eyes, it was easy to escape reality and be transported back through the decades to the unprecedented phenomenon and still-never-equaled genius of those four lads from Liverpool.

We daresay that the plaintiff in Johnson v. Smithkline Beecham Corp., 2015 U.S. Dist. LEXIS 42458 (E.D. Pa. Apr. 1, 2015), who filed suit for her Thalidomide injuries more than fifty years after she sustained them, hoped the Court would keep its eyes closed to the inescapable reality that her action was time-barred.  This was not to be.

Plaintiff Debra Johnson was one of fifty-two plaintiffs born in the late 1950’s or early 1960’s who filed state-court Thalidomide suits in Philadelphia against GlaxoSmithKline and certain of its affiliates (“GSK”), along with Sanofi-Aventis and/or Grunenthal GmbH. The cases were removed to the United States District Court for the Eastern District of Pennsylvania on diversity grounds.  Last July, GSK filed a Motion for Summary Judgment on Johnson’s claims, arguing that the claims were barred by the statute of limitations.  In October, plaintiffs in twenty-eight of the remaining cases against GSK moved to dismiss their claims against GSK with prejudice.  Johnson (who has amended her complaint to name only GSK), along with a pro se plaintiff and perhaps a handful of other plaintiffs, are continuing to pursue their claims.Continue Reading When You Hear Hoofbeats: GSK Soundly Defeats Time-Barred Thalidomide Claims

Photo of Steven Boranian

Can a plaintiff sue in federal court for consumer fraud when he never purchased and never used the product?  This is not a trick question, and the obvious answer is also the correct answer.  No, he can’t.  But the point raises interesting strategic issues that we will get to in a minute.  The case du jour is Dapeer v. Neutrogena Corp., No. 14-22113-Civ, 2015 U.S. Dist. LEXIS 37644 (S.D. Fla. Mar. 25, 2015), where the plaintiff filed a class action alleging that the labeling for more than 20 different types of sunblock made deceptive sun protection claims.  Id. at **2-3.  Mind you, the plaintiff did not allege sunburn, or any other adverse effect of the allegedly underpowered and purportedly not-so-water-resistant lotions and sprays.  His claims were of the economic type, as class actions these days tend to be, alleging that he would not have purchased the products had he known that the products did not actually block the sun or resist water as well as the labels claimed. Id. at *3.

The problem for the plaintiff was that he had purchased only two of the products, leading the court to conclude that he lacked Article III standing to represent classes asserting claims over the products he never bought.  Apparently, there are district courts that would have allowed this plaintiff to do what he wanted to do, i.e., represent class members on claims involving over 20 products [see id. at *9 n.3], although we cannot see how that can possibly be.  The rule in the Eleventh Circuit seems rock solid:  “[A]t least one named plaintiff must establish Article III standing for each class subclaim.  In other words, Article III standing of a named plaintiff must be established on a claim-by-claim basis within the Eleventh Circuit, and deferring the standing determination to the class certification stage will yield no different result.”  Id. at *9 (citations omitted).

So to have standing in a claim alleging deceptive sales, the plaintiff must have bought the product, and the district court therefore dismissed the claims related to products the plaintiff did not purchase or use.  Id. at *9 (“Here, Plaintiff lacks Article III standing to bring claims on behalf of the . . . products he did not purchase because he cannot conceivably allege any injuries from the products that he never purchased or used.”).  The class action still went forward, but with claims over two products instead of more than 20.Continue Reading Plaintiff Gets Burned By Article III in Sunblock Class Action

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Recently someone asked the listserv for members of the Product Liability Advisory Council (“PLAC”) whether a plaintiff’s demand for the videotaping of a defense expert’s non-destructive examination of the components of an explanted medical device can be resisted. It seemed like an interesting question, and we like PLAC, so we decided to look for product liability cases where such demands had been made – recognizing, of course, that just as the other side might want to demand this of us, we might also wish, in certain cases, to require the same of the other side.

The brief answer to the question posed is “yes, it can be resisted.”Continue Reading Videotaping Opposing Expert Product Examinations

Photo of Stephen McConnell

It was big news that there will be a six hour return of The X-Files, a show that dazzled us from 1993 to 2002.  The “myth-arc” episodes about an alien invasion, black oil, and the disappearance of Special Agent Mulder’s sister were overwrought and confusing, but the standalone entries were television at its creepy best.  The bullpen of X-Files writers was stellar, including, among others, Darin Morgan and Vince Gilligan.  You probably have heard of Gilligan, since he later went on to helm a program now carved on the medium’s Mt. Rushmore, Breaking Bad.  (Gilligan’s current show, Better Call Saul, is also quite good.  And the ‘hero’ is a lawyer!)  Morgan is less well-known, but he penned some of the most admired X-Files episodes, which married humor to mystery in ways not matched since.  If you want to treat yourself to three hours of splendid viewing, fire up Netflix and take in these four all-time great X-Files episodes, the first two by Morgan and the latter two by Gilligan:
Continue Reading Illinois Appellate Court Misapplication of Bartlett Preemption: The Monster Case of the Week

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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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