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

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

Last week with dismay, we described the Eastern District of Pennsylvania’s decision in Gross v. Coloplast Corp., et al., 2020 WL 264691 (E.D. Pa. Jan. 17, 2020).   The Gross court (we are resisting the immature cheap shot) “predicted,” in the face of decades of contrary evidence, that the Pennsylvania Supreme Court would not

First, we’ve endured MDL courts messing around with Utah law and ignoring the usual congruence in the treatment of prescription drugs and prescription medical devices under Restatement (Second) of Torts §402A, comment k (1965).  We covered that kerfuffle here, here, here, and here.  More recently, the Fifth Circuit in In re