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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

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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

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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  Plaintiff offered “no authority” for her contrary argument, and the “handful of unpublished cases” the defendant cited are not mentioned in the Burton opinion.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

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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

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Lord knows, there are a lot of meritless MDLs.  Bexis’ and Michelle’s Bone Screw litigation, prompted by a televised CYA freak-out by then-FDA Commissioner David Kessler over an off-label use that had become the medical standard of care, was one, and it gave us Buckman.  Several MDLs against modern anticoagulants, such as Xarelto, are another example, since all of those second-generation drugs were safer than the older forms of blood thinners they superseded.  Currently, the Taxotere MDL – based on the dubious proposition that the plaintiffs cared more about hair loss than most effectively treating their breast cancer – and Zostavax – where not a single plaintiff can prove causation – come to mind.  Our colleagues defending other MDLS can also be excused for believing that their own litigation should be added to this list.

But for sheer factual baselessness, it would be hard to top the still-ongoing Avandia MDL, which somehow has managed to persist since 2007.  The Avandia litigation is infamously based on a purported increased risk that, over a decade ago, the FDA scientifically determined did not exist.  Briefly, a study erroneously found an increased risk of cardiovascular events with Avandia that led to both a boxed warning and additional studies.  The additional studies debunked that supposed increased risk and the FDA removed the boxed warning:Continue Reading Avandia Litigation – Is This Finally the End?

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In re Deepwater Horizon Belo Cases, — F.4th –, 2024 WL 4522690 (11th Cir. Oct. 18, 2024), is not a drug or device case. It is the Eleventh Circuit’s review of the Northern District of Florida’s exclusion of the plaintiffs’ general causation experts in a toxic tort exposure case arising from the

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Here is a brief and happy follow up to our stupid expert tricks redux post.  That post by Bexis involved a purported talc plaintiff-side expert who authored what could charitably be called a “junk science” medical article (now two such articles) on cosmetic talc causation of mesothelioma.  This “research” (we grin as we write that