March 2016

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California rejected another attempt by the class action bar to extend the already questionable fraud-on-the-market theory from Basic v. Levinson, 485 U.S. 224 (1988), a securities class action, to what amount to failure to warn claims for consumer products or, as we’ve seen before, drugs and medical devices.  This time the class action plaintiffs’ bar was focused on e-cigarettes.  See In re NJOY, Inc., Consumer Class Action Litig., 2016 U.S. Dist. LEXIS 24235 (C.D. Cal. Feb. 2, 2016).  A handful of hopeful consumers claimed that they were misled by an e-cigarette’s labeling and were not warned about its ingredients or risks.  Id. at *3.  As is often the case with these types of class action claims, however, the plaintiffs did not allege an injury—well, at least not a physical injury.  They suffered no side effects.  They had no physical ailments.  The risks didn’t affect them.
Continue Reading California Rejects Class Certification for Claims Alleging Misrepresentations and Deficient Warnings But No Method to Establish Damages

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There aren’t that many cases applying Wyoming law, but the recent Tolman v. Stryker Corp., ___ F. Appx. ___, 2016 WL 683315 (10th Cir. Feb. 19, 2016), does – and we like its reasoning.  The injured plaintiff was in an unrelated accident and tore up his leg pretty badly (comminuted fracture).  He had an intramedullary nail inserted to hold everything together while he healed, but since this is a product liability case, that didn’t happen.  Instead plaintiff suffered a “[f]ailed gamma nail with nonunion.”  Id. at *1.

Plaintiffs (husband and wife) tried to get by with some version of a malfunction theory/res ipsa loquitur, because they “never deposed their designated experts.”  Id. at *2.  Bad move.  The trial court granted summary judgment and the Tenth Circuit eventually affirmed. The mere fact that an implant – particularly a weight bearing implant – broke does not create a jury question that it was defective.Continue Reading A Plaintiff Needs More Than a Broken Device To Win

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Last week’s “breaking news” post on West Virginia’s statutory restoration of the learned intermediary rule started us thinking about how every state now has pro-learned intermediary precedent.  That’s a big change even from when we started this blog.  It’s also a stunning repudiation of the other side’s rhetoric. We remember, back in 1999, when the New Jersey Supreme Court went off on a tangent and recognized a novel “DTC advertising” exception to the learned intermediary rule in Perez v. Wyeth Laboratories, Inc., 734 A.2d 1245 (N.J. 1999).  The plaintiff-side Greek chorus in legal academe – always looking to foment more litigation so ever-more law school graduates would have ever-more jobs – was quick to declare the Perez exception the wave of the future.  E.g., C. Nadal, “The Societal Value of Prescription Drug Advertisements in the New Millennium: Targeted Consumers Become the Learned,” 9 J.L. & Policy 451 (2001); Y. Fushman, “Perez v. Wyeth Laboratories, Inc.:  Toward Creating A Direct-to-Consumer Advertisement Exception to the Learned Intermediary Doctrine,” 80 Boston U.L. Rev. 1161 (2000); J. Karns, “Direct Advertising of Prescription Drugs:  The Duty to Warn & the Learned Intermediary Rule,” 3 DePaul J. Health Care L. 273 (2000).  There were many more.
Continue Reading The Renaissance of the Learned Intermediary Rule

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Movie makers have been sharing their vision of post-apocalyptic worlds for decades now.  They keep making them because we keep watching them.  Arid landscapes, plague, squalor.  The struggle between hope and hopelessness; between abandon and a belief that there will be a better tomorrow.  The topic begs for epic movie treatment and there are quite a few good ones. Last year saw what many would consider one of the best in the genre – Mad Max: Fury Road.  It won 6 Oscars for almost everything that assaults your eyes and ears in a film — costume design, makeup, sound editing, sound mixing, production design and film editing.  But it is in no means the only post-apocalyptic film worthy of a couple of hours in the dark.  Among some of the more recent entries in this film category The Road stands out not only as a fairly good novel adaptation but also for provoking the audience to think “what would you do?” There is also Children of Men dealing not only with the devastation of world war but with the extinction of humans from infertility.  And if you haven’t seen Terry Gilliam’s Twelve Monkeys, well just shame on you.  And, if this is all just a bit too heavy for your tastes, you can still enjoy the genre through the beautifully animated, heart-string pulling, Pixar’s WALL-E about a small waste-collecting robot left alone on Earth who ends up saving humankind.  (We know we haven’t even scratched the surface, and haven’t mentioned Hunger Games, but you get the idea).
Continue Reading Parallel Claims – What Happens Post Surviving Preemption

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If Sunday night’s Academy Awards show is propelling you towards your nearest movie theater to catch up on the nominated flicks, put The Revenant on the top of your list if you have not already seen it.  Most of you probably know that there is a startling scene in The Revenant where a bear suddenly attacks the character played by Leonardo DiCaprio.  (Leo acted truly surprised and dismayed.  No surprise there; he is usually set upon by supermodels.  Their claws are slightly less sharp.)  It is an amazingly scary, overwhelming moment, leaving viewers shuddering and wondering ‘how-did-they-do-that?’

Perhaps every movie would benefit from a random bear attack. In The Big Short, wouldn’t it be swell if a grizzly paid a visit to an investment bank conference room just as a commercial mortgage backed securities transaction was about to close?  Matt Damon had a tough time making it on his own on Mars, but think how much more challenging it would have been if a mama bear interrupted his gardening.  There was certainly a lot of tension during the final prisoner exchange in Bridge of Spies, but it would have upped the ante if the East German snipers had to contend with ursine mischief. Nor need the benefits of beardom  be confined to this year’s Oscar nominees.  If we can colorize Citizen Kane or It’s a Wonderful Life, why can’t we insert bear attacks as Kane utters “Rosebud” or when Jimmy Stewart is about to take a sucker punch from a bar bouncer?  Surely, a bear hug would have enlivened the slower moments in The King’s Speech or A Beautiful Mind?  Or DiCaprio could have met that bear earlier, whilst scampering around the decks on the Titanic.  The mind reels.Continue Reading Ninth Circuit Holds that Therapist was Fraudulently Joined

Drug & Device Resources

Bexis’ Book

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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