Blair v. Abbvie Inc., 2025 WL. 57198 (W.D. Pa. Jan. 9, 2025), is, from the defense perspective, a favorable opinion dismissing (some with prejudice, some with leave to amend) all counts of the plaintiff’s complaint. The opinion is a bit odd, in a semi, unintentionally-ironic sort of way, because it faults the plaintiff for
Search results for: comment k
Don’t Let Pennsylvania Plaintiffs Succeed with Phony Comment K Argument
By Bexis on
Recently we discussed the latest opinion in the ongoing “controversy” over the application of Pennsylvania’s comment k across-the-board rule to cases involving medical devices. Douglas v. Atrium Medical Corp., 2024 WL 4364950 (M.D. Pa. Sept. 20, 2024). We use “controversy” advisedly, because as Douglas held, there is “no substantial ground for difference of opinion…
M.D. Alabama Holds that Comment k Can Apply to Medical Devices
By Stephen McConnell on
Smith v. Angiodynamics, Inc., 2024 U.S. Dist. LEXIS 73561 (M.D. Alabama April 23, 2024), offers the veritable mixed bag of rulings. The plaintiff alleged that an implanted vascular device fractured, resulting in pieces of the device migrating to the plaintiff’s heart. The plaintiff underwent surgery to remove the fragments. The plaintiff’s lawsuit included claims…
Comment K, Presumptions, and Medical Device Design Defects Under Texas Law
By Bexis on
As much as we liked those parts of In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, 888 F.3d 753 (5th Cir. 2018) (applying Texas law), that overturned a half-billion dollar verdict caused by a combination of attorney misconduct and judicial lassitude, we also recognized the problematic effects of certain other Fifth Circuit rulings in that decision. While the good parts of Pinnacle Hip were good enough to win that decision a spot in our 2018 top ten cases, that decision’s adverse aspects were bad enough that it also landed on our list of 2018’s worst ten decisions. Specifically we observed:
The most serious error the court made was refusing to apply established Texas law that comment k precludes strict liability across the board. Pinnacle Hip ignored – really ignored − a half dozen prior decisions (including one of its own) on this issue. Even if there wasn’t any precedent (which there was), expanding state-law liability where the state courts have not is not the job of a federal court sitting in diversity.
Continue Reading Comment K, Presumptions, and Medical Device Design Defects Under Texas Law
Good “Comment k” Decision in Pain Pump Case out of E.D.Pa.
By Rachel B. Weil on
We report, with excitement and apprehension, that we have tickets to see Hugh Jackman as Harold Hill in The Music Man next month on Broadway. The Drug and Device Law Dowager Countess blushes and giggles at the mention of Jackman, and the outing seemed a worthy one, not without apparent urgency given time’s ravages (the…
Good Comment k Decision – and Some Mixed Holdings – in W.D. Pa. IVC Filter Case
By Rachel B. Weil on
We begin by introducing a new Drug and Device Little Rescue Dog. We lost the oldest of our rescued angels – a perfect soul we will miss as long as we are breathing – in the fall. Our other dog was sad and lonely, so we set out to adopt a companion for him. Our…
W.D. Pa. Applies Comment k to Animal Prescription Drugs
By Stephen McConnell on
The Drug and Device Law Daughter has told us more than once that the future will see a vast expansion of animal rights. Animals are capable of suffering, and even if they will never be accorded the exact same civil rights as people (who are, after all, also animals), surely we will find ways to…
A Great Comment k Decision from the Eastern District of Pennsylvania
By Rachel B. Weil on
We begin with an update on the “visiting dogs’ health crisis.” All medications are finished, special diets are a thing of the past, and (dare we say it out loud) all canine digestive tracts seem peaceful. The chubby Pomeranian was relieved of about four inches of hair today at the hands of a…
Another Bad Comment k Decision from a Pennsylvania Federal Court
By Rachel B. Weil on
Last weekend, the Drug and Device Law Rock Climber passed through to drop off her two dogs – a four-pound Chihuahua and a chubby Pomeranian, now hirsute, who was nearly bald from a skin infection when he was rescued a year ago. These are very cute dogs who mostly get along with the Drug and…
More Bad Comment k Law from the Eastern District of Pennsylvania
By Rachel B. Weil on
This Wednesday evening marks the beginning of the Jewish holiday of Passover. In every other year, our large extended family has gathered for Seder, a ritual dinner that commemorates, with traditional foods, songs, and prayers, the exodus of the Israelites from slavery in ancient Egypt. In our family, Seder is a beloved (and occasionally raucous)…