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Bexis

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JAMES M. BECK is Reed Smith's only Senior Life Sciences Policy Analyst, resident in the firm's Philadelphia office. He is the author of, among other things, Drug and Medical Device Product Liability Handbook (2004) (with Anthony Vale). He wrote the seminal law review article on off-label use cited by the Supreme Court in Buckman v. Plaintiffs Legal Committee. He has written more amicus briefs for the Product Liability Advisory Council than anyone else in the history of the organization, and in 2011 won PLAC's highest honor, the John P. Raleigh award. He has been a member of the American Law Institute (ALI) since 2005. He is the long-time editor of the newsletter of the ABA's Mass Torts Committee.  He is vice chair of the Class Actions and Multi-Plaintiff Litigation SLG of DRI's Drug and Device Committee.  He can be reached at jmbeck@reedsmith.com.  His LinkedIn page is here.

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Back in 2008, we wrote a post, No, Bu shi, Non, Iie, Nada, Nyet…., collecting a significant body of law holding that overseas defendants are not required to translate, at their expense, documents prepared in their non-English home languages.  The other day we came across Sessoms v. Toyota Motor Sales, U.S.A., Inc., ___ S.E.2d ___, 2024 WL 5249823 (N.C. App. Dec. 31, 2024), reversing yet another order that a foreign defendant pay for translating its own documents:

[W]e conclude the trial court erred by requiring the . . . Defendants to create new documents in English of documents already provided that are in the Japanese language.  Rule 26 of our Rules of Civil Procedure allows a party to seek documents in the possession of the adverse party; it does not generally require the adverse party to pay for any said documents to be translated into the English language.  In other words, there is no duty to produce documents that do not exist.

Id. at *2 (citation omitted).  Sessoms was “persuaded by what we perceive to be the greater weight of authority in the United States that a party producing documents is not required to create new documents consisting of English translations of documents already provided.”  Id. at *3.  Sessoms cited eight cases exemplifying that “authority” – three of which were decided after our 2008 post.  That suggests that the post could use an update.

So here’s that update.Continue Reading Still Nyet, Defendants Not Required to Pay for Translation of Documents

This blog has long encouraged defendants in prescription medical product liability litigation to seek relevant ediscovery from plaintiffs.  We even have an ediscovery cheat sheet with almost 250 favorable decisions either allowing defense-side ediscovery in personal injury cases or else sanctioning plaintiffs for spoliating sought-after electronic data.  But we confess, we’ve been focused so firmly on social media and smartphones, where ediscovery from plaintiffs originated, that we have ignored the rising popularity of fitness trackers, Fitbits, smart watches, smart rings and similar devices (even clothing) being marketed to people who may eventually become plaintiffs.  These products create a great deal of health-related (and other) information that is of obvious relevance in mass (and other) tort litigation.

What we found is that surprisingly few defendants seem to be seeking this type of information – at least there are very few decisions involving discovery of these devices.Continue Reading Ediscovery for Defendants – The New Frontier

The decision in Burton v. AbbVie, Inc., 2024 WL 3207008 (C.D. Cal. Feb. 21, 2024), presented an interesting, if somewhat arcane, discovery question:  whether a plaintiff’s treating physician, listed as only an “un-retained” percipient witness for which no expert report is required under Fed. R. Civ. P. 26(a)(2)(C), can be deposed during the period of time that a court’s scheduling order provides solely for “expert” discovery.  Burton held that was proper under the rules:

Plaintiff’s disclosure of [several treaters] as non-retained experts . . . cuts against her argument that these doctors are only percipient witnesses.  Furthermore, while Plaintiff asserts that the treating physicians will only testify to treatment given in the past and what may be needed in the future, the Court notes that this testimony will inherently require the physicians to rely on their medical training to opine on what future treatment may be needed.  Accordingly, this Court joins the other district courts in this circuit to find that a treating physician, by virtue of their training and skill, is also properly considered an expert witness.  Therefore, Defendants are free to depose [the treaters] during expert discovery.

2024 WL 3207008, at *3 (no citations omitted) (emphasis added).  Plaintiff offered “no authority” for her contrary argument, and the “handful of unpublished cases” the defendant cited are not mentioned in the Burton opinion.  So we decided to take a look.Continue Reading Treating Physicians May Be Deposed as Experts

We warned everyone, but there is no sense beating a dead horse (or bear, or whale).  So we’re getting right to the unpleasant business of discussing the bottom ten worst prescription medical product liability litigation decisions of 2024.  And we stress both “product liability” and “litigation.”  Otherwise, we’d have to include Harrington v. Purdue…

Some of your bloggers recently attended the American Conference Institute’s annual Drug and Medical Device Litigation Conference in New York.  One of the conference panels addressed a recent unsettling ruling in a non-drug-device case that held communications training provided by defense counsel for their client’s employees was not only discoverable but admissible at trial.  In re Google Play Store Antitrust Litigation, 664 F. Supp.3d 981, 983 (N.D. Cal. 2023).  Moreover, some of the “practices” that found their way into the opinions seemed to us not only privileged but entirely unobjectionable:

Plaintiffs also point out that, for years, [defendant] has directed its employees to avoid using certain [legal] buzzwords in their communications. . . .  Eight years later, [defendant] still was telling employees . . . “[a]ssume every document you generate … will be seen by regulators.”

United States v. Google LLC, ___ F. Supp.3d ___, 2024 WL 3647498, at *113 (D.D.C. Aug. 5, 2024) (citation omitted).  That’s only good sense, and no different than the other side (at least if they have good lawyers) tells its own individual plaintiffs before they have to testify. Continue Reading Privilege and Lawyer-Provided Employee Training

The last time we looked into Bueno v. Merck, it was anything but bueno.  Taking the position that, “if there is a cause of action, there must be jurisdiction,” a misguided decision had held that a branded drug manufacturer could be haled to court under an innovator liability claim, despite the defendant having never sold anything to the plaintiff in the state.  See Bueno v. Merck & Co., 626 F. Supp.3d 1154 (S.D. Cal. 2022).  That decision made our bottom ten list in in 2022.

Two years later – and who knows how many $$$ spent in the interim – the result on the merits was incomparably better.  All claims dismissed with prejudice for a variety of excellent reasons.  Bueno v. Merck & Co., ___ F. Supp.3d ___, 2024 WL 3974754 (S.D. Cal. Aug. 27, 2024).  Ditto for a companion case decided the same day.  See Parker v. Merck & Co., 2024 WL 3974764 (S.D. Cal. Aug. 27, 2024).

Here’s what happened.Continue Reading Bueno and More Bueno

In 2018, our blogpost on In re Johnson & Johnson Talcum Powder Products Marketing, Sales Practices & Liability Litigation, 903 F.3d 278 (3d Cir. 2018), was entitled “Money For Nothing?  No Standing This Time in the Third Circuit.”  There, it appeared that the Third Circuit had drawn an eminently reasonable bright line disallowing no-injury…

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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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