Not that we need any, but the recent decision in McFarland v. APP Pharmaceuticals LLC, slip op., 2011 WL 2413797 (W.D. Wash. June 13, 2011), is another reason to like TwIqbal.
The wife plaintiff was administered an anticoagulant drug and, lo and behold, her “platelet counts dropped dramatically.” 2011 WL 2413797, at
Applied American Exceptionalism
According to the Wikipedia entry (OK, maybe not the most reliable source, but it is the fastest), “American exceptionalism” is the notion “that the United States is qualitatively different from other nations.” The first person to say so (although not in those exact words) wasn’t even American, but French – Alexis de Tocqueville. While sometimes
Give Us A T For Tennessee
Since we haven’t heard any of the services mention it, we thought we’d point out that the learned intermediary rule recently got a lengthy endorsement in prescription medical product cases from the Tennessee Supreme Court:
[T]he learned intermediary doctrine. . ., which allows a seller in a failure to warn case to rely on an
A Little Rain In The Desert
Several years ago (just writing that makes us feel tired) we put up a mournful post entitled In The Deserts Of New Mexico, in which we expressed our disappointment that a federal judge – any federal judge – would ignore no fewer than four intermediate appellate decisions from the New Mexico Court of Appeals and
What Other People Are Saying About Mensing
Two More From The Supreme Court
Generic Manufacturers Win Preemption In Mensing
The Court decided 5-4 in favor of generic preemption today in Pliva, Inc. v. Mensing, No. 09–993, slip op. (U.S. June 23, 2011). We’d like to talk about Mensing, but it’s a metoclopramide case, and consistent with blog policy we don’t comment on cases in which Dechert
What’s In Them For Us?
The Supreme Court decided the climate change case, American Electric Power Co. v. Connecticut, No. 10–174, slip op. (U.S. June 20, 2011), and the class action case, Wal-Mart Stores, Inc. v. Dukes, No. 10–277, slip op. (U.S. June 20, 2011), yesterday. We can’t hope to compete with the deluge of general comment on
E-Discovery Fee Shifting?
Maybe.
From what we can tell from the recent opinion in Race Tires America Inc. v. Hoosier Racing Tire Corp., 2011 WL 1748620 (W.D. Pa. May 6, 2011), that case was one of those e-discovery wars where the parties went at one another hammer and tong, and for long periods e-discovery disputes all-but-obscured the
It Should Be An Interesting Couple Of Weeks
According to the Supreme Court’s website, the current term is due to end on June 27. With no fewer than six cases of interest still undecided after today’s decision in Smith v. Bayer Corp., No. 09–1205 (U.S. June 16, 2011), it promises to be an interesting couple of weeks. There are only three
Denture Cream Myelopathy Claims Found Toothless
If there’s a better place for filing Daubert motions than in the Eleventh Circuit, we don’t know of it. Of course, we’re biased – we had great success with them ourselves in the Seroquel litigation and in the Ephedra litigation before that. Building on the Eleventh Circuit’s landmark decision in McClain v. Metabolife, International, Inc., 401 F.3d 1233 (11th Cir. 2005), defendants have had a lot of success fighting “junk science” peddlers in Eleventh Circuit courts.
And so it was with yesterday’s decision in In re Denture Cream Products Liability Litigation, No. 09-2051-MD-Altonaga, slip op. (S.D. Fla. June 16, 2011). The product is (surprise) a denture cream, Fixodent. The alleged defect is failure to warn that zinc compounds allegedly reduce the amount of copper in the blood, which in turn purportedly cause something called “copper deficiency myelopathy” (called a lot of other things, too, see slip op. at 2 n.3) – which we’ll call “CDM” for short. The very existence of such a thing as CDM is controversial. The court in Denture Cream found that the claims didn’t pass Daubert scrutiny.
The Denture Cream defense team went after this MDL pretty much using the Seroquel model – that is, take the MDL plaintiffs’ best case and beat it on Daubert grounds. The test plaintiff in Denture Cream claimed numbness in her hands and feet (a description suspiciously like diabetic neuropathy) leading to loss of function in her arms and legs, along with various blood abnormalities. Slip op. at 2-3.
These symptoms appeared after the test plaintiff allegedly used Fixodent – a lot of Fixodent.
How much Fixodent?
From the Denture Cream opinion: The test plaintiff supposedly “use[d . . .] two to four 68-gram tubes of Fixodent denture adhesive every week for eight years to hold her dentures in place.” Slip op. at 3.Continue Reading Denture Cream Myelopathy Claims Found Toothless