It’s a short work week, and we’ve got a short case for today’s discussion. Ebrahimi v. Mentor Worldwide LLC, 2020 WL 2510760 (9th Cir. May 12, 2020), eats up only one page when we set our printer to double-sided (which we always do now, since the pandemic work-at-home routine gobbles up paper and ink
Search results for: breast implants
Breast Implant Preemption (the Sequel)
Last week we discussed the Jacob v. Mentor Worldwide, LLC case, in which a pro se plaintiff alleged injuries from breast implants and complained that the manufacturer had inadequately warned of the risks. The claim boiled down to an attack on the FDA-approved labeling of a class III medical device, and that meant it was…
M.D. Fla. Holds Breast Implant Claims Preempted
No writer made as strong an impression on us in high school as Albert Camus. The opening of The Stranger is arresting: “Mother died today. Or maybe it was yesterday, I don’t know.” Our teacher pronounced The Plague to be an even better book, and he often quoted the bit about how we had “to…
Court Rejects Aiding/Abetting and Conspiracy Claims Against Breast Implant Manufacturer
From our days as a prosecutor, we built up a healthy respect for the power of conspiracy claims. They can be a splendid tool for dragging in more defendants, beating the rule against hearsay (coconspirator statement exception), beating the statute of limitations (a continuing conspiracy can bring even old statements up to date), and telling…
D. Kansas Stays Discovery in Breast Implant Case Because of Pending PMA Preemption Motion
We like preemption and we dislike expensive discovery. In Gale v. Mentor Worldwide, LLC, 2019 WL 2567790 (D. Kansas June 21, 2019), the court felt the same way we do, and did something about it.
The plaintiff in Gale sued for injuries allegedly sustained as a result of silicone breast implants. The complaint contained…
Breast Implant Litigation – The Defense Wins a … Couple
It was a Merry Christmas and a Happy New Year for Tucker Ellis’ Dustin Rawlin and his breast implant defense team – and they were considerate enough to share it with us.
Wait a minute, you might be saying, breast implant litigation? Isn’t that passé? I n a sense, we’d agree with you. This isn’t…
New Jersey Finds Preemption in Breast Implant Litigation
While 2019 is solidly under way, we’re still catching up on a sizable number of favorable decisions to have come down right before the new year. That’s certainly not a complaint. We love a full plate of defense wins. So, for today’s post we’re reaching back a few weeks to tell you about a decision…
M.D. Florida Shoots Down All Breast Implant Claims Except for Negligent Manufacturing Defect
Last year’s list of the Ten Worst DDL cases was remarkable because all ten decisions came from appellate courts. Yikes. And it is not as if the bad appellate decisions were spread around. Two came from our home circuit, the Third. Two came from the reliably problematic Ninth Circuit. But the ‘winner’ was the Eleventh …
C.D. Cal. Excludes Three Plaintiff Experts in Breast Implant Case
It is not as if we are delighted to see efforts to resuscitate breast implant litigation, but we won’t groan when the rulings are as good as they are in Laux v. Mentor Worldwide, LLC, No. 2:16-cv-01026-ODW(AGR) (C.D. Cal. Nov. 8, 2017). Here, we are talking about Daubert rulings. (The court also issued good…
Three Strikes and Out of Court for Breast Implant Opt-Out
Over the weekend, we watched one of our favorite “chick flicks,” a holiday-themed montage entitled “Love, Actually.” One of our favorite characters, played by the ever-brilliant Bill Nighy, is an over-the-hill former pop star who resorts to superimposing cheesy holiday lyrics on a familiar melody in an (ultimately successful) attempt to manufacture one last comeback. A disc jockey, hearing this effort for the first time, exclaims, “How the mighty have fallen!” This crossed our mind as we read today’s case, a decision on Daubert motions in a leftover breast implant case.
Twenty-some years ago, we cut our Drug and Device teeth on breast implant litigation, arguing motions in the infant Mass Tort Program in Philadelphia Back then, the high-profile litigation, involving claims that breast implants caused serious auto-immune diseases in recipients, commanded high levels of attention and resources and produced some landmark verdicts. Now, with the vast bulk of the litigation long settled, key defendants in bankruptcy, and many of plaintiff’s claims resoundingly debunked, all that remains are isolated opt-outs, like In re Dow Corning, Corp., Ezra v. DCC Litigation Facility, Inc., 2015 WL 5737997 ( E.D. Mich. Sept. 30, 2015), a primer on Daubert’s raison d’etre.
Plaintiff in Ezra claimed that her silicone gel implants caused
muscle aches and pains all over her body; metallic taste in the mouth; chronic problems with diarrhea; dizziness/vertigo problems; chronic low-grade fevers; frequent yeast infections; chronic fatigue; severe headaches; loss of taste and smell; memory loss and loss of concentration; frequent gastrointestinal problems; sinus problems with ear aches; difficulty swallowing; problems with choking; easily bruised with slow healing of bruises and cuts; spider veins on legs and feet; coldness of hands, fingers, feet, toes and face; muscle spasms; problems with rashes; tingling and numbness in extremities; difficulty breathing; unexplained dental problems; excessive hair loss; as well as emotional, physical and financial losses.
Ezra, 2015 WL 5737997, at *1. She proffered the testimony of three causation experts, and defendant moved to exclude all three.Continue Reading Three Strikes and Out of Court for Breast Implant Opt-Out