Taking a look at the fairly recent decision denying class action certification in In re: Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation, 2011 WL 2634248 (W.D. Mo. July 5, 2011), we weren’t as much interested in the result (denial of class certification) as in the procedure the court adopted following the Wal-Mart Stores, Inc.
Remand Denials in Hip Implant MDL
We’ve just found out about multiple remand denials from the Depuy hip implant MDL. Legally, they’re all pretty much the same, although there are some factual differences. They all reject, even under the relaxed fraudulent joinder standard, any possibility that a manufacturer’s sales representative can be subject to an independent product liability claim where the
Rehearing Sought In Mensing
The plaintiffs in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) (not sure why it’s all-caps, but that’s the way the Supreme Court has it), have sought reargument. Here’s a copy of their petition.
Any Supreme Court rehearing petition is a long shot, but in this case, we’d have to say it’s worse
Removal And All That Yaz
Our friends at Sidley have sent along another interesting removal/remand decision out of the Yazmin/Yaz MDL in the Southern District of Illinois. Since we all get some joy from orders denying remand that come from this district (encompassing some notorious hellholes), they shared it with us, and we’re sharing it with you. While
Economic Loss Plaintiffs Don’t Step Up To The Plate
When we convince a court that an action against one of our clients must be dismissed for failure to state a claim – say, for TwIqbal reasons – under Rule 12, we sometimes say that the plaintiff’s case was so poor that s/he couldn’t even get to first base. A much rarer form of dismissal,
Interesting First Amendment Law Review Note
A recent law review note, Kristie Lasalle, “A Prescription for Change: Citizens United‘s Implications for Regulation of Off-Label Promotion of Prescription Pharmaceuticals, 19 J. L. & Pol’y 867 (2011), copy here, puts an interesting twist on the First Amendment arguments against the FDA’s ban against truthful promotion of off-label use. It analogizes between
Ooee Gooey
When we (well, one of us) were little kids, we watched a TV show called the “Popeye Club.” The host, Officer Don, would put four paper bags on a flat turntable – three of which were “goody bags” and one contained the infamous “ooey gooey” (mixed live on set, we recall). Officer Don would turn the turntable so blindfolded kids from the live audience who played the game almost always got the goody bags, but when Officer Don was blindfolded, well….
We may not remember much about our early elementary school days, but we still remember the exaggerated expression on Officer Don’s face when he stuck his hand into the ooey gooey (made from stuff like coffee grounds, fresh broken eggs (shells included), Bosco, ketchup, and cottage cheese). Nobody could look more grossed out than Officer Don.
Reading the recent opinion in DiCosolo v. Janssen Pharmaceuticals, Inc., 2011 WL 2640801, slip op. (Ill. App. June 30, 2011), was a lot like getting the ooey gooey. Our expressions would have done Officer Don proud.
The decedent in DiCosolo died from some sort of drug overdose. She “had access to 11 central nervous system (CNS) depressants immediately prior to her death,” including multiple sedatives (Clonazepam, Bextra, Topomax, Gabapentin), antidepressants (Venlafaxine), opiates (Avinza), narcotics (Duragesic), and barbiturates (Butalbital). 2011 WL 2640801, at *1. The coroner tested her blood for some – not all, a bone of contention – of these drugs. Finding several present, he initially ruled the death a suicide. Id.
Then the plaintiff (the decedent’s husband) received a recall letter for Duragesic – a transdermal (skin) patch with the narcotic fentanyl as its active ingredient. According to the recall, “a small percentage” of a certain batch “leaked medication” into the adhesive gel that could possibly cause an overdose. 2011 WL 2640801, at *2. The decedent’s patches came from the batch. Id. The coroner’s blood work also indicated a fentanyl overdose. Id. at *1.
Plaintiff got a lawyer. The lawyer prevailed on the malleable coroner to “change[] his conclusions . . . from ‘suicide’ to ‘accident’.” 2011 WL 2640801, at *2.
Then the real fun and games began. Plaintiff’s complaint alleged “that the patch that [decedent] was wearing at the time of her death caused her respiratory arrest and death.” Id.
However, plaintiff soon had a big problem.Continue Reading Ooee Gooey
More Comments on Personal Jurisdiction
Our recent post on the Supreme Court’s two “stream of commerce” personal jurisdiction decisions, produced an email to us from Arthur Fergenson, at Ansa Assuncao, LLP, who argued the J. McIntyre v. Nicastro case to the Supreme Court. His comments were sufficiently lengthy and astute, that we asked him if we could present
Addendum
Last Friday, we put up a bare bones post about some expert rulings in HT (bare boned because our involvement in the litigation limits what we can say). We’ve now learned that the third order has been – not exactly modified but supplemented – and we don’t want any readers not getting fully accurate information.
Reparations
The last couple days’ dialogue with our subscribers suggests that the blog’s email outage was uneven. Some subscribers may have lost email transmission of our post for more than a month. We’ve already apologized, but we think we should do more. Here’s a list of what we posted about – with links – between June