It’s a good day in suburban Philadelphia. The sun is shining, the snow is melting, Covid-19 cases are down nationwide, and we just got a text from the Drug and Device Law Rock Climber heralding a weekend visit (with the Irascible Rescue Pomeranian in tow). We are enjoying a welcome (if cautious) flash of optimism.
Design Defect
Design Claims Fail Under Consumer Expectations Test With An Adequate Warning

Plaintiffs tend to assert a bunch of different claims. For prescription medical device cases, setting aside preemption, our experience is that plaintiffs do best—that is, avoid summary judgment and directed verdict—with design defect (strict liability or negligence) claims. One reason for that is that it tends not to be hard to make up some theory,…
Following up on a Recent Bottom Ten Decision

Late last year we awarded our #10 spot on our Worst of 2020 post to In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2020 WL 7418006 (D.N.J. Dec. 18, 2020) (“VLI”). At that point the decision was brand new, and we promised a more in-depth analysis. Here it is.
VLI fits…
A Most Disappointing Declaration from Georgia

This post is from the non-Reed Smith side of the blog.
Dear Readers,
The tone of today’s missive may be slightly more formal than most. For you see, as a result of binge watching Bridgerton on Netflix, the written word is being narrated in our head by the incomparable Julie Andrews. We so greatly esteem…
D.N.J. Dismisses Orthopedic Screw&Plate Case/We Dole Out Top Ten Entertainments That Helped Us (Temporarily) Forget COVID

We refuse to end the year on a bad note, so we’ll talk about a case that’s good – not good enough to make tomorrow’s top-ten list, but good enough to slam the door shut on 2020 with a reasonable amount of cheer.
Vicente v. Johnson & Johnson, 2020 WL 7586907 (D.N.J. Dec. 21,…
No Manufacturer Liability for After Market Modifications

Today’s topic is something a little different. We don’t usually think of after market modifications to prescription drugs and medical devices. If this were a blog about cars, computers, or almost anything with a motor or engine that can be enhanced for speed – user modifications would be a central theme. In the drug and…
Trick or Treat? The Ghost of Pelvic Mesh Haunts Medical Device Litigation

The Pelvic Mesh MDLs are now all but over, with all but a few stragglers either settled or remanded. But the specious logic used in that litigation to overturn decades of precedent that had recognized compliance with FDA regulatory actions as relevant and admissible evidence, is still afoot to haunt medical device manufacturers. As we’ve…
Florida Appellate Court Rejects Consumer Expectations Test for Design Defect Claims in Medical Device Cases

There was an awful lot for defense counsel to contend with in Cavanaugh v. Stryker Corp., 2020 WL 5937405 (Fl. Dist. Ct. App., 4th Dist. Oct. 7, 2020). The patient died during surgery when the defendant manufacturer’s suction device damaged his heart. Another patient died under similar circumstances two years earlier. The manufacturer…
Maryland Court Leaves Design Defect as Sole Surviving Claim

This blogger took last week off – from everything except some sand, the ocean, and drinks with little umbrellas. And books! Books set in the post-Civil War era (The Book of Lost Friends), in post-World War I (The Last Train to Key West), during World War II (The Only Woman…
Partial Preemption Win On Tenuous Claims

The order of operations can matter. Back in elementary school, you may have learned a mnemonic about somebody’s aunt to help you remember the right order for doing certain math problems. In computer programming, engineering, auto repair, surgery, and a myriad of other endeavors, you can get very different results if you take the same…