Two weeks ago we wrote about a pelvic mesh case that crumbled on remand due to the plaintiff’s failure to depose the implanting physician. The importance of the implanting physician is self-evident. Because the plaintiff bears the burden of proving the elements of torts, including whether a different warning would have prompted the implanter to
Adequate Warnings Need Not Specify Defects, Mechanisms, or Sequelae
Consider this an addendum to the “Adequate Warnings Should be Enough” post that Bexis wrote back in February. What makes a warning “adequate”? Insistence on truth and completeness is of little help. One does not have to be one of history’s all-time villains to ask what is truth, and it is just as legitimate to
Learned Intermediary Rule and Failure to Depose Treater Combine to Clobber Iowa Pelvic Mesh Claims
Kelly v. Ethicon, Inc., 2020 U.S. Dist. LEXIS 191665 (N.D. Iowa Oct. 16, 2020), is a remanded pelvic mesh case. The complaint included the usual panoply of causes of action for negligence, strict liability, fraud, and breach of warranty. Failure to warn, as usual, was central to the plaintiff’s case.
During the years while
A Pause for Lawyer Wellbeing
Last Saturday was World Mental Health Day. We hope you celebrated by getting outdoors in the very pleasant weather typical of early October throughout this beautiful country. We hope you also spent a few moments taking stock of your own mental wellbeing. Lawyers do not conduct such a self-assessment nearly enough. We are focused on
N.D. Georgia Holds that Pradaxa Claims are Preempted
Lyons v. Boehringer Ingelheim Pharmaceuticals, Inc., 2020 WL 5835125 (N.D. Ga. Sept. 29, 2020), was a wrongful death action alleging that the anticoagulant drug Pradaxa was defective and not accompanied by adequate warnings that blood plasma concentrations should be monitored and that certain patient characteristics, such as age, renal impairments, and concomitant statin
D.Mass Rejects Post-trial Motions by Corporate Officers Convicted of Off-Label Promotion
Can a court decision be simultaneously depressing and exhilarating? You might be surprised how often that happens. In United States v. Facteau, 2020 WL 5517573, (D. Mass. Sept. 14, 2020), the court upheld criminalization of off-label promotion, but did so in a way that might signal the end of an era in which pharmaceutical
The Tide Rolls on: Yet Another Decision Preempting Breast Implant Claims
We slipped our summer vacation in just before summer slipped away. Last week, we walked the rocky shores of Cape Cod, ate lobstah rolls the size of trolley cars, and navigated our way through the traffic catastrophes charmingly known in New England as “rotaries.” On our last day in the Bay State, the temperature plunged.
N.D. Ohio Preempts Some Opioid Claims (No, Not THAT Case)
The Covid-19 lockdown period is approaching the six-month mark, from mid-March to mid-September. Throughout the spring and summer we have been reading old novels with convoluted plots and surprise endings. Today we take a look at an old case, though only from a prior decade, not a prior century. If the case is convoluted, it
M.D. Georgia Exercises Personal Jurisdiction over Japanese Company Based on Activities of U.S. Distributor
We often say, as we said last week, that this blog is not designed to do plaintiffs’ work for them. Thus, we are a heckuva lot more likely to trumpet pro-defense rulings than wrong ones. Still, it is important to know the problem areas out there, and today’s case displays one of them. It
N.D. Fla.’s. Mixed Bag of Vaginal Mesh Daubert Rulings
It is an old legal adage that hard cases make bad law. One could also say that big cases make bad law, especially if by “big” we include Multi-District Litigation (MDL) cases. When a federal judge is suddenly in charge of thousands of cases, that judge will too often start thinking more like a manager