We write from Tampa, Florida, where we attended the bridal shower of a lifelong friend’s daughter. In a happy coincidence, the event fell on the last weekend of a two-week stretch of dog shows in which our puppy’s sire, a spectacular white corded Standard Poodle named Joel, was being shown. A lovely interlude, except for
Res Judicata Bars Second Suit in E.D. La., Notwithstanding “New” Claim
Today we ponder “do-overs,” a timely topic as the House of Representatives struggles, over and over, to elect a speaker. As we write, the seventh unsuccessful vote has just concluded. We have learned that the record stands at 22 votes before the beleaguered candidate finally prevailed. This was in 1820, as John W. Taylor, an
Change of Venue Granted in D. Minn. Mesh Case
We start this, our last post of 2022, by indulging in a few words about hope. Jumping way back, the story begins when we were around 20 and moved to Nashville (from Philadelphia) for a couple of years, on a whim. That’s the only way to describe it – there was no good reason, except that we thought it would be fun. While we were in Nashville, we made some friends who were then big names in the country music industry. They are still our friends, more than 40 years later. And, though many have forgotten them, they still perform, but at coffeehouses and “small dates,” not in huge auditoriums. Last week, one of our friends, who still lives in Nashville, did a “swing” of four such small dates in Pennsylvania and its environs. She (and her guitarist) stayed with us all week. On the last night, we held a house concert in our home. As we sat in our living room, surrounded by friends and fellowship and oh-so-beautiful music, we felt magic, and we felt hope, both of which have eluded us amid the multi-faceted darkness that marked much of 2022. Bottom line is that we don’t always have choice in the events that shape our lives. But we can choose music, and we can find hope. We hope your 2023 is filled with both.
The plaintiff in today’s case also was denied choice, this time her choice of the venue for her case. In Yumei Li-Bachar v. Johnson & Johnson, et al., 2022 WL 17094600 (D. Minn. Nov. 21, 2022), the plaintiff, a Michigan resident at all times relevant to the lawsuit, was implanted with the defendant’s pelvic mesh device in Michigan. Fourteen years later, she underwent revision surgery in Rochester, Minnesota. She filed suit in the District of Minnesota, asserting the usual litany of product liability claims, and the defendant moved to transfer venue to the Western District of Michigan.
The court explained that, under the “transfer statute,” 28 U.S.C. § 1404(a), it had broad discretion when considering a motion to transfer venue. The court continued:
The decision to transfer under Section 1404(a) involves a two-step inquiry. First, the district court must determine whether the action might have been brought in the proposed transferee district. Second, the district court must weigh three factors, which are whether transfer would be (1) convenient for the parties, (2) convenient for the witnesses, and (3) in the interests of justice.
Continue Reading Change of Venue Granted in D. Minn. Mesh Case
Lovely Warnings Causation (and More) Mesh Decision from the Central District of California
We are just back from a lovely long weekend in Mexico. We were delighted to find, on our DVR, a show we’d forgotten we set to record: a special interviewing the cast and director of Love, Actually on the 20th anniversary of that film’s release. This is our all-time favorite holiday film, and pretty close to our favorite film of any genre. We love how it has crept into popular culture (the SNL parody of the flip cards scene, featuring Kate McKinnon as Hillary Clinton is nothing short of brilliant), and we find the film endlessly charming and restorative, no matter how many times we watch it. Take a look at the special, if you missed it
Speaking of all-time favorites, today’s case deals with warnings causation, our all-time favorite doctrine. (Along with our co-blogger, Mr. McConnell, we just presented a CLE on this topic.) This is the doctrine: to prevail on a failure-to-warn claim in a prescription drug or medical device case, a plaintiff must prove both that the products warnings were inadequate and that the inadequate warning proximately caused the plaintiff’s injuries. Subject to variations of local law, the general rule is that, to prove the warnings causation piece, a plaintiff must adduce evidence that a different or stronger warning would have altered her physician’s decision to prescribe the drug or device.
In Brennan v. Johnson & Johnson, et al., 2022 WL 17219513 (C.D. Cal. Nov. 18, 2022), the plaintiff alleged that the warnings provided with her pelvic mesh devices were inadequate. She asserted failure-to-warn claims sounding in negligence and strict liability, and the defendant moved to dismiss both, arguing that the plaintiff could not prove that any inadequacy of the warnings proximately caused her injuries because her prescribing physician had not testified that she would have acted differently in the face of a different warning. Continue Reading Lovely Warnings Causation (and More) Mesh Decision from the Central District of California
Eleventh Circuit Affirms Exclusion of Flawed “Differential Diagnosis” in Pelvic Mesh Case
We write on the heels of a long weekend layered with dogs and fun. The National Dog Show, which you may have watched on TV yesterday, is held about ten minutes from our house, and a fabulous corded Standard Poodle named Joel, who just happens to be “family” (he is the sire of our gorgeous puppy, Luca) won Best of Opposite Sex two days running (and stayed overnight with us). And two out-of-town handlers we know unexpectedly needed a place to exercise their charges, so we twice got to stand in our back yard while no fewer than seven show dogs, from ten pounds to 150 pounds, swirled around us. We can’t imagine being much happier.
Layers of good mark today’s case, as well. Arevalo v. Mentor Worldwide LLC, et al., 2022 WL 16753646 (11th Cir. Nov. 8, 2022), is a decision on the appeal of a Northern District of Florida decision we liked very much. Arevalo is a pelvic mesh case. The plaintiff alleged that mesh devices implanted to treat her stress urinary incontinence and pelvic organ prolapse caused her to undergo mesh removal surgery and to suffer a familiar litany of injuries. The plaintiff’s general and specific causation expert was the ubiquitous Dr. Bruce Rosenzweig. Among numerous other motions, the defendant moved to exclude Dr. Rosenzweig’s specific causation opinion as unreliable because Dr. Rosenzweig did not perform an adequate differential diagnosis. The court granted the motion and excluded the specific causation opinions, holding that Dr. Rosenzweig “did not explain how he systematically and scientifically ruled out the other potential causes for the plaintiff’s symptoms. Arevalo, 2022 WL 1673646 at *4. The court then granted summary judgment for the defendant because the plaintiff could not reach the jury without expert specific causation testimony. The plaintiff appealed to the Eleventh Circuit, and today’s decision is the result. Continue Reading Eleventh Circuit Affirms Exclusion of Flawed “Differential Diagnosis” in Pelvic Mesh Case
N.D. Cal. Dismisses Baby Food Label Claims
Tonight, with great pleasure, we will hand out candy to tiny costumed neighbors – the three- and five-year-olds from across the street, who call us “Miss Rachel,” and the seven- and 10-year-olds from next door, who come over daily to play with the new puppy, among others. (Not too many others, we fear – we
Mixed Bag of W.D. Pa. Mesh Holdings: When It’s Bad, It’s Very, Very Bad
We are delighted to report that we are in love. The object of our affection, named Luca, is eight weeks old and weighs 9.6 pounds. Yes, our new standard poodle puppy, trumpeted repeatedly to patient readers of these pages, is home. The couple-hundred-mile trip to pick him up was packed with excitement and anticipation
Whaley Redux: S.D. Cal. Conflates Innovator Liability with Personal Jurisdiction
We are trying very hard not to bore everyone silly with endless discussion of our puppy-to-be, almost certainly interesting only to us. But we are failing. So, briefly, we comment that we met the whole spectacular litter last week – eight gorgeous butterballs. Five are white, and three are now black but will probably end
Summary Judgment for Defendant on Warnings and Punitive Damages Claims in D. Ariz. Artificial Hip Case
Quick puppy update: the standard poodle puppies, one of which will be our first-ever show dog in a house filled with canine and feline rescued ragamuffins, are four weeks old today. All eight are fat and healthy, despite a scare with one white male puppy a week or so ago. We will meet them this
Three-Strike Smackdown of Plaintiff’s Rebuttal Experts in N.D. Ill. Breast Implant Case
The puppies are here! We are delighted to follow up on our last post, wherein we announced that the mother of our standard-poodle-puppy-to-be was in the middle of giving birth. We are thrilled to report that the final tally includes eight beautiful, healthy pups – four boys and four girls, three white and five blue