For several years now, the Valsartan MDL has been something of a poster child for the problems with modern serial product liability litigation. It started with questionable data coming out of a questionable lab, leading to publicity and regulatory actions that outpaced reliable evidence of increased risk from an alleged carcinogenic contamination. It snowballed
As anyone who has read more than a paragraph of what we’ve written knows, this is a forthrightly pro-defense Blog. It is not our practice to criticize the strategy or tactics of defendants or their counsel. It’s not that what defendants do is always right, but to us its almost always understandable.
We were all
From its start, the Blog has railed against certain expansions of traditional product liability that could have negative impacts on scientific progress and the availability of good medical products. Innovator liability, first described in Conte back in 2008, is a good example of a bad idea. Its offspring, the so-called duty to innovate
We’ve written many blogposts kvetching about rulings in the Bair Hugger Multidistrict Litigation (MDL) out in Minneapolis. See here, for example. The rulings on expert admissibility in the Bair Hugger MDL were particularly weak. But surely the rulings would be much better in our home district of the Eastern District of Pennsylvania, right? And
This post is from the non-Butler Snow side of the blog.
When you represent medical device manufacturers in product liability litigation, you will deal with allegations that a device broke or failed because of what it was made from, and you will encounter both experts and “experts” (scare quotes intended) in materials science.
Materials science
Defendant in Beavan v. Allergan U.S.A., Inc., 2014 N.J. Super. Unpub. LEXIS 2898 (N.J. App. Nov. 21, 2024) made two solid arguments for summary judgment – preemption based on the FDCA’s recall regulations and plaintiff’s lack of admissible expert testimony. The trial court rejected both. The appellate court, however, saw the merit in the
There have been some famous law review articles, such as R. Coase, “The Problem of Social Cost,” J. of Law and Economics (1960), and S. Warren & L. Brandeis, “The Right to Privacy,” Harvard L. Rev. (1890). Those articles made waves when they came out, and they were cited endlessly. But when was the last
The District Judge in Lin v. Solta Medical, Inc. is evidently on a year-end push. We reported just the other day on the court’s order granting summary on the plaintiff’s warnings-based claims, but denying summary judgment on design defect. A few days later, the court ruled on the parties’ motions to exclude expert opinions. This
The decision in Burton v. AbbVie, Inc., 2024 WL 3207008 (C.D. Cal. Feb. 21, 2024), presented an interesting, if somewhat arcane, discovery question: whether a plaintiff’s treating physician, listed as only an “un-retained” percipient witness for which no expert report is required under Fed. R. Civ. P. 26(a)(2)(C), can be deposed during the period of time that a court’s scheduling order provides solely for “expert” discovery. Burton held that was proper under the rules:
Plaintiff’s disclosure of [several treaters] as non-retained experts . . . cuts against her argument that these doctors are only percipient witnesses. Furthermore, while Plaintiff asserts that the treating physicians will only testify to treatment given in the past and what may be needed in the future, the Court notes that this testimony will inherently require the physicians to rely on their medical training to opine on what future treatment may be needed. Accordingly, this Court joins the other district courts in this circuit to find that a treating physician, by virtue of their training and skill, is also properly considered an expert witness. Therefore, Defendants are free to depose [the treaters] during expert discovery.
2024 WL 3207008, at *3 (no citations omitted) (emphasis added). Plaintiff offered “no authority” for her contrary argument, and the “handful of unpublished cases” the defendant cited are not mentioned in the Burton opinion. So we decided to take a look.Continue Reading Treating Physicians May Be Deposed as Experts
We’re in New York this week for a legal conference that is always a good time. But, truth be told (and we are officers of the court, after all), several years ago we attended a conference sponsored by plaintiff lawyers and it was in every way a delightful affair. The judges did more than show