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The Dearinger case in the Western District of Washington provided a lot of defense friendly blog fodder. It made its way to the Washington Supreme Court for a certified question whether Washington would recognize a direct to consumer exception to the learned intermediary rule. The Washington Supreme Court answered that question with a resounding no.  Following that decision, the district court dismissed some of plaintiffs’ claims on an initial motion for summary judgement.  We blogged about that decision here.  The latest decision in Dearinger v. Eli Lilly & Co., 2024 WL 416848 (W.D. Wash. Feb. 5, 2024) serves up some nice defense nuggets applying the Washington Product Liability Act (WPLA) and refusing to let a sham affidavit create a fact issue.Continue Reading Last Nail in the Coffin for Dearinger

We’ve been posting about decisions from In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation, MDL 2775, since 2018.  Its preemption ruling on defendant’s motion to dismiss made the list of ten worst decisions from 2018, and a subsequent preemption decision reflected more MDL madness.   Things improved when the court began addressing causation at summary judgment, and pretty soon cases were falling like dominoes.  Today’s decision from the MDL, Williams v. Smith & Nephew, Inc., 2024 WL 99542 (D. Md. Jan. 8, 2024), continues that positive trend.Continue Reading Another Dismissal in the Birmingham Hip MDL

This is my first post as a new member of the Drug & Device Law team.  Like many of you, I’ve been a consistent reader of the blog for years and I rely on it regularly.  I remember talking with Jim Beck and Mark Herrmann many years ago when the blog was just getting started (pretty sure it was 2006).  Now here we are.  I’m a partner with Butler Snow LLP’s Pharmaceutical, Medical Device and Healthcare practice, and I’ve focused my practice on mass torts for almost my entire career.  I’m excited about contributing to the blog and welcome any comments. Now on to business. 

MDL discovery is inevitably burdensome on defendants, and the challenges defendants face in attempting to limit the scope of MDL discovery are exponentially more difficult than in single plaintiff cases. Throw a few hundred cases together in an MDL, and courts seem much more willing to view the scope of permissible discovery through a vastly broader lens.  So we read with interest decisions that limit discovery, place some of the burden on the plaintiffs, or—even better—implement cost shifting and require the plaintiffs to pay for some or all of what they seek in discovery.Continue Reading Cost Shifting in the Tasigna MDL