We don’t particularly like starting our week with an adverse decision; certainly not after a holiday weekend.  But, we seem to have stumbled upon a variety of negative decisions to report on this week, so we’ll just dive in and get it over with. Fittingly for the day after Labor Day (we think), we decided to start with a case that centers on employee liability – specifically whether plaintiff had sufficiently pleaded his claims against the non-diverse sales representative so as warrant remand to state court.  The court said yes.

The case is Hutchens v. Smith & Nephew, Inc., 2104 U.S. Dist. LEXIS 116839 (N.D. Tex. Aug. 22, 2014).  Plaintiff sued the manufacturer and one of its sales reps over an allegedly defective hip implant, including a claim for violations of the Texas Deceptive Trade Practices Act (“DTPA”).  Id. at *6.  Defendants removed the case to federal court alleging that the sales rep had been fraudulently joined.  On plaintiff’s motion to remand, the question before the court was whether the claims against the sales rep survived a Rule 12(b)(6) dismissal-type analysis. Although pending in federal court, the court opted to apply Texas’ more lenient “fair notice” pleading requirement finding that the “standard applicable at the time the initial lawsuit was filed in state court should govern.”  Id. at *10.  First strike – no TwIqbal.

Moving to the substantive analysis, the court only examined plaintiff’s DTPA claim – only one claim against the sales rep needed to survive to remand the entire case.  The DTPA claim allegations as to the sales rep were that he:

exercised substantial control over the provision of warnings and . . . provided inadequate warnings, instructions, or representations to Plaintiffs that were incorrect, violated the . . . [DTPA] and induced Plaintiffs to implant the identified devices, causing Plaintiffs’ harm.

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The court in Turner v. DePuy Orthopedics, Inc., 2014 U.S. Dist. LEXIS (C.D. Calif. July 29, 2014), ordered the remand of a removed case after rejecting the defense’s argument that Mensing preemption (or at least its reasoning) should be extended to failure to warn claims brought against a doctor involved in the design of a medical device.  The defense’s argument was aggressive, even inventive, but it wasn’t bad.  Its argument was that the doctor-designer, much like a generic drug manufacturer, had no control over the warning label.  Rather, the manufacturer controls the ultimate content of the label, just as the brand manufacturer, not the generic manufacturer, controls the ultimate content of generic drug’s label.  The court saw things differently, though.  Taking plaintiff’s allegations as true, the court found a “possib[ility]” that the doctor “had a substantial ability to influence the manufacturing or distribution” of the device.  Id. at *10.

Maybe, but we’re not sure that any of that gave the doctor the power to control or influence the content of the label.  Nor did we find such support in plaintiff’s allegations.  According to the court, plaintiff alleged that the doctor “designed the hip implant,” received royalties (millions) from it, and participated in its marketing. Id. at *8-9.  We agree that, from these allegations, it’s “possible” that the doctor-designer could have influenced labeling of the device.  But did plaintiff allege enough to make it “plausible”?  It doesn’t seem so.  Only guesswork allows one to conclude that this particular individual had that type of influence.  Drugs and devices are generally developed and designed by multiple doctors and scientists.  This is reflected in the defense’s opposition, which included a declaration from the doctor-designer stating that he was only one of “eight physicians who acted as consultants in the design process.”  Id. at *9.  One of eight consultants certainly doesn’t sound like someone with influence over final labeling.  There needed to be more factual allegations suggesting, plausibly, that this doctor could have exerted such control or influence.

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Not to over-generalize, but older people have been known to break their hips.  Based on anecdotal evidence, broken hips hurt more than stepping on a broken bottle or a sea urchin during a tropical vacation.  Based on more than anecdotal evidence, product liability plaintiff lawyers prefer state courts over federal courts.  This is because of various factors that, they think, make the state courts more likely to impose pain, and impose a lot of pain, on the defendants.  We have posted on many cases discussing the strategies used by product liability plaintiffs to stay out of federal court.   These cases often come up in the posture of a motion to remand by the plaintiff after the defendant has removed under 28 U.S.C. § 1446.  If the case can be transferred to an MDL court—potentially well-versed in the anti-removal strategies—before a ruling on the motion to remand, then the chance of the case staying put tends to go up.

In Millman v. Biomet Ortho., Inc., No. 3:13-CV-77 RLM-CAN (N.D. Ind. Dec. 10, 2013), and Akin v. Stryker Corp., Civ. No. 13-1811 (DWF/FLN) (D. Minn. Dec. 12, 2013), we have decisions on motions to remand from two different MDL courts on two different cases involving two different hip replacement implantable medical devices.  We also have two different results, although both are good.

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This is from the Dechert side of the blog only.

Last week we gave you a lot of Medtronic decisions to mull over and to mostly be happy about.  And, like we mentioned, Medtronic is no stranger to preemption issues.  So, when we found yet another new Medtronic favorable device preemption case, at first we thought we might add it to one of our scorecards or cheat sheets and call it a day.  But, this is a win in a Ninth Circuit court and after Stengel, that can’t go overlooked. But, we’ll keep it short and simple nonetheless.

The case is Suckow v. Medtronic, Inc., No. 2:12-cv-01870-GMN-CWH, slip op. (D. Nev. Sept. 20, 2013) and it involves a pacemaker manufactured by Medtronic that was implanted in plaintiff in 2006.  Plaintiff had to have the device removed on an emergent basis in December 2010 and alleges she suffered injuries as a result of the removal surgery.  In addition to strict liability and breach of express warranty claims against Medtronic, plaintiff also brought negligence and misrepresentation claims against a Medtronic sales representative alleging that a few months before the removal, he evaluated the device and found it was operating normally and was fit and safe for continued use.  Slip op. at 2.Medtronic removed the case to federal court and argued that the sales representative was improperly joined.

Medtronic challenged the plaintiff’s claims against the sales representative on two grounds.  First, the sales rep had no contact with the plaintiff before December 2010.  Second, if the sales rep evaluated the device, it was at the request of the physician and it is the physician who “interprets any data and makes decisions.”  Id.  at 6.  While plaintiff argued that her claims against the sales rep weren’t preempted, she apparently neglected to address any of the arguments on fraudulent joinder.  Id.  So, it really was a no-brainer for the court to uphold removal and move on to decide Medtronic’s preemption motion.

But, we just want to take a minute to remind our readers that there are more substantive decisions out there about the risks of liability from the involvement of sales reps in the care and treatment of patients.  See our post here.  In Suckow, while the court didn’t have to reach it, it looks like defendants had a strong learned intermediary defense because the sales rep’s role was limited to the evaluation of the performance of the device, not in rendering advice, opinions, or direct care to the plaintiff.

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A favorite tactic of plaintiffs’ lawyers is to join together dozens of completely unrelated plaintiffs’ into one complaint. We see it all the time. Counsel lump their clients together in mass complaints that contain general allegations regarding the product, but nary a detail about the individual plaintiffs or their alleged injuries. They also choose fora that more often than not bear no relation to the parties or the controversy and are chosen by counsel for strategic purposes.

We can see why plaintiffs’ attorneys do this, but it does not make it right. By massing plaintiffs together, they give their cases an impression of gravitas, even if few (or none) of the plaintiffs have valid claims. Mass complaints also save them money because they pay one filing fee instead of many, preserving their war chests while simultaneously depriving the courts of funding they need to provide access to justice.

But the most invidious aspect of the mass complaint is the blatant forum manipulation in which plaintiffs’ counsel engage. Where complete diversity exists, it is a non-forum defendant’s statutory right to remove cases to federal court, so long as other requirements for removal jurisdiction are met. But if plaintiffs’ counsel can find just one plaintiff whose citizenship is the same as one defendant, he or she can combine that one plaintiff’s claims with the claims of others into one complaint, purportedly destroying complete diversity and making the complaint appear to be non-removable. Never mind that every other plaintiff’s citizenship is diverse from the defendant’s and that removal jurisdiction can and should exist over all their claims. Also never mind that keeping claims in state court means that they will not be transferred to federal multidistrict litigation. When MDLs exist, they usually have been requested by plaintiffs, and manipulating the forum to avoid MDL transfer is both hypocritical and wasteful of resources that parties and courts invest in those proceedings.

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So far this week, we’ve brought you very positive news.  Unfortunately, that’s about to change.  As much as we don’t like reporting it, we think it is important to get the word out about decisions that trouble us almost as much as it’s important to celebrate the victories.  So, when we came across Lucas v. Abbott Laboratories, 2103 WL 2905488 (N.D. Tex. Jun. 13, 2013) and saw that the court was allowing plaintiff to amend his complaint and that the decision cited Murthy v. Abbott Laboratories, 2012 U.S. Dist. LEXIS 171246 (S.D. Tex. Dec. 3, 2012) – we knew we weren’t going to like the result.

There have been multiple Murthy decisions that haven’t made us happy and our discussion of last year’s decision can be found here.  Unfortunately, on off-label promotion, the Lucas decision appears to go even a step further than Murthy.

In Lucas, plaintiff alleged injury from the drug Humira that was prescribed off-label – which we all know doctors are allowed to do.  In response to defendant’s motion to dismiss, plaintiff Lucas sought leave to file an amended complaint which he claimed sufficiently pled an exception to Texas’s pharmaceutical products liability immunity statute.  Lucas, at *1-2 (plaintiff’s original complaint was filed by now disbarred counsel and new counsel admitted it did not contain sufficient allegations regarding the immunity exceptions).  The statute provides that in a pharmaceutical products liability action “there is a rebuttable presumption that the defendant . . . [is] not liable with respect to the allegations involving failure to provide adequate warnings . . . if  the warnings or information that accompanied the product . . . were those approved by the [FDA].”  § 82.007 of the Texas Civil Practices and Remedies Code.  One of the exceptions to this bar on liability is where:

the defendant recommended, promoted, or advertised the pharmaceutical product for an indication not approved by the United States Food and Drug Administration; the product was used as recommended, promoted, or advertised; and the claimant’s injury was causally related to the recommended, promoted, or advertised use of the product.

§ 82.007(b)(3).

As to the second element, defendant conceded that plaintiff was prescribed the drug for an off-label use.  Id. at *4.  It was the first and third elements that Defendants challenged.  So, what was the alleged off-label promotion?  Defendant conducted clinical trials.  If you are waiting for more, keep waiting.  That’s it.  That’s all.  Plaintiff alleged that by conducting FDA-approved clinical trials to study off-label indications, defendant was promoting the drug for those off-label indications.

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A few weeks ago we blogged about courts that adhere to the Twiqbal pleading standard in deciding whether a defendant has been fraudulently joined and therefore whether a case should remain in federal court or be remanded.  The focus of our post was on whether courts were applying Twiqbal or some lesser federal standard for