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
Product liability litigation over Class III medical devices is an interesting creature. Absent something unusual, cases and litigations should not get past motions to dismiss. That is pretty clearly what Congress intended when an express preemption provision was added to the Medical Device Amendments of 1976. We understand that each plaintiff may think her case is exceptional in that it should meet the exception to the rule of preemption. (We do not really think the plaintiff lawyers think that, although they sure argue it enough.) But the usual is more common than the unusual by definition. When you hear hoof beats, you should look for a horse not a zebra, unless you happen to be in a part of the world where zebras are endemic or end up in a zebra enclosure in a zoo. When you hear Class III medical device product liability case, you should look for all claims to be dismissed unless there is something as unusual as a basis to claiming the plaintiff’s particular device deviated from its FDA-approved specifications.
In 2001, the Supreme Court made getting past motions to dismiss harder when it held in Buckman that plaintiffs could not recover claims predicated on violations of FDA regulations. An unfortunate fiction developed post-Buckman—particularly after Riegel v. Medtronic, Inc. 552 U.S. 312 (2008)—that plaintiffs could assert “parallel claims” that were neither expressly preempted by the provisions of the MDA nor impliedly preempted under Buckman. We, and others, have described the purported path of a parallel claim as being like navigating between Scylla and Charybdis, a monster and whirlpool on opposite sides of a narrow strait per ancient Greek mythology. Without claiming that mythology is the same as fiction—we are not touching that with a twenty foot sarissa—we can say that a true parallel claim is as rare as a striped unicorn or perhaps a flying horse. The unfortunate fiction of which we spoke above has taken shape with particularly egregious appellate decisions like Bausch such that some trial courts are advised, when they hear the hoof beat of a Class III medical device product liability case, to expect Pegasus or his stripy, horned pal to gallop around the corner.
Viewed over the course of more than five years and many decisions, three of which have featured in prior posts (here, here, and here, which drew honorable mention honors in 2018), we think Bausch delayed the inevitable in Gravitt v. Mentor Worldwide, LLC, __ F.Supp.3d __, 2022 WL 17668486 (N.D. Ill. Dec. 14, 2022), by insisting that parallel claims for failure to report adverse events to FDA exist. After an unnecessary odyssey, the manufacturer of a Class III breast implant won summary judgment on the last of plaintiffs’ claims, alleged failure to report adverse events to FDA. (We say “plaintiffs,” but the decision referred to the plaintiff with the implant—who we will call the “plaintiff”—by her first name and the consortium plaintiff by his first name. In terms of whether the last claim was supported, the court referred the female plaintiff only and somehow omitted any reference to “burden.” These are usually signs that at least one claim will survive summary judgment.) A shout out to Dustin Rawlin and his colleagues for sticking it out on this case and sending us this decision.
Continue Reading Fallacious FDA Reporting Claim Finally Falls
At ACI’s December session in New York we will be part of a panel discussion on product liability actions against over the counter (OTC) medicines. Such lawsuits are certainly not new, but some aspects of them are. For example, so called “independent” laboratories have played an outsized, perhaps inappropriate, role in driving such lawsuits. In addition, proof of use problems abound with OTC products. Without prescription records, can the mere say-so of a plaintiff carry the day on usage, or should there be corroboration in the form of bottles, photographs, receipts, loyalty program records, etc.? Scientific issues of medical causation can be very different with OTC drugs as compared with rX versions. There are usually different doses and durations. Warning causation can also take a very different shape in OTC world. The absence of a learned intermediary (though, to be sure, sometimes there is a learned intermediary advising the patient to take an OTC medicine – what to do about that?) makes it easier for patients to engage in misuse. At the same time, alleged injuries from OTC medicines can be every bit as profound as from prescription drugs. Think of all those terrible SJS/TEN cases.
And then there is the defense of preemption. As we’ve written about several times before (here, for example), there is pretty broad express preemption of non-product liability actions against OTC medicines. Now after all that wind-up, we come to today’s case, Truss v. Bayer Healthcare Pharmaceuticals Inc., et al., 2022 WL 16951538 (S.D.N.Y. Nov. 15, 2022), which is a defense favorable OTC drug preemption case involving a purported economic loss class action against a sunscreen manufacturer. The plaintiffs filed a putative class action claiming that the sunscreen manufacturers falsely marketed the sunscreen as being hypoallergenic and gentle for skin even though the sunscreen actually contained benzophenone, which they allege to be hazardous degradation product. (Yes, this is yet another case in which the plaintiff alleges harm from chemical breakdown/degradation substances in a product. Perhaps a new chapter in the plaintiff drug and device playbook is being written.) The plaintiffs asserted claims under California and New York consumer protection laws, as well as common law theories of unjust enrichment and breach of warranty. The defendant filed a motion to dismiss.
Continue Reading SDNY Dismisses Sunscreen Case Based on Preemption
It’s the start of cold and flu season, so why not talk about cough syrup. Most cough medicines come in two versions – daytime and nighttime. The nighttime version typically contains an antihistamine which are known to cause drowsiness. Daytime versions often contain an expectorant (to thin and loosen mucus) and a cough suppressant. A common cough suppressant is dextromethorphan hydrobromide (DXM). That is the ingredient at issue in Goldstein v. Walmart, Inc., 2022 U.S. Dist LEXIS 196743 (S.D.N.Y. Oct. 28, 2022).
Walmart sells its own brand of OTC cough medicine containing DXM and the label says “Non-Drowsy.” Plaintiff alleges she relied on that statement in selecting the medicine and she became unexpectedly drowsy after taking it. She filed a putative class action alleging breach of express warranty, breach of the Magnuson-Moss Warranty Act, and violations of various state consumer protection laws. Defendants moved to dismiss all claims as preempted.
The federal regulations governing OTC medicines are found in monographs which are promulgated by the FDA and set the approved active ingredients for a class of drugs as well as any conditions under which they are considered safe and effective. Id. at *7-8. There is a monograph for Cold, Cough, Allergy, Bronchodilator and Antiasthmatic drugs. It requires certain products in this class to carry a warning that the drug may cause drowsiness. DXM is not one of them. Id. at *8.
The FDCA has an express preemption clause for OTC drugs – requirements that are “different from or in addition to” or “not otherwise identical with” the FDCA are preempted. Product liability claims have an exception, but this is not a products case. The opinion does a thorough walk through of the relevant case law. Id. at *21-31. Plaintiff tried to squeeze her claims through a small gap in the preemption window: “preemption does not preclude a state-law claim if the state requirement is outside the scope of the relevant federal requirements.” Id. at *23. Courts within the Southern District of New York have approached the scope question and reached slightly different conclusions.
Continue Reading Southern District of New York Puts Non-Drowsy Labeling Claims To Bed
Few medical treatments suffer from an image problem as bad as electroconvulsive therapy (ECT). We remember when it was called electro shock therapy. We also remember its gruesome depiction in One Flew Over the Cuckoo’s Nest. But modern medicine has redeemed ECT. It can be a genuinely effective treatment for maladies such as depression
We are not the only ones who have pointed out that every new contraceptive for the last fifty years or so has been the subject of litigation and that it is not hard to see how the burden associated with such litigation, even if the manufacturer does well, discourages the development of new options. This
We scratched our heads last year when the Third Circuit misconstrued the federal PREP Act to allow a state-law negligence claim arising from an alleged COVID-related death, in direct contravention of the Act’s express preemption. See Maglioli v. Alliance HC Holdings LLC, 16 F. 4th 393 (3d Cir. 2021). The other shoe dropped the
Happy Star Wars Day. May the Fourth be with you.
If all FDA approved medicines enjoyed the preemption protection that vaccines do, the DDL product liability litigation landscape would be leaner and less nonsensical. Flores v. Merck & Co., 2022 U.S. Dist. LEXIS 46442 (D. Nev. March 16, 2022), shows why that is so.
Defendants love and plaintiffs hate Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which together stand for the proposition that to state a claim and avoid dismissal a plaintiff must allege facts that plausibly suggest that the defendant is liable. Today’s case, Poozhikala v.
We write on a gorgeous spring day in suburban Philadelphia, with Passover imminent for us and Easter for many we love. Today’s decision contains more than enough “good” to sustain the positive vibe. Ward v. Zoll Lifevest Holdings LLC, 2021 WL 7907066 (D.D.C. Sept. 20, 2021) is a D.C. District case from last September