Another year bites the dust. We have just about made it through 2023, and while we have compiled our annual top ten best prescription medical product liability litigation decisions, we have the same sense with these as we did with last week’s bottom ten – in 2023 the favorable (as well as unfavorable) results from
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The Agony of Defeat -The Ten Worst Prescription Drug/Medical Device Decisions of 2022
It’s that time of year again – time to review drug and medical device product liability litigation during 2022 and select the year’s ten worst decisions. Frankly, it’s not that hard to do – they reek to high heaven, so they are pretty easy to find. What’s harder is finding the motivation to write about decisions that we find profoundly distasteful for one reason or another. It’s fun to write about wins, but not about losses, so watch for decisions we might not have addressed previously.Continue Reading The Agony of Defeat -The Ten Worst Prescription Drug/Medical Device Decisions of 2022
Shameless Plug – Anybody Need End of the Year CLE?
To anyone who needs a few more CLE hours before the end of the 2022, we wanted to let you know that sessions from Reed Smith’s recent Life Sciences CLE Week are now available on demand. Here are descriptions of the topics, and registration links.
The Ebb and Flow of the Law – A Year…
Summary Judgment for Defendant on Warnings and Punitive Damages Claims in D. Ariz. Artificial Hip Case
Quick puppy update: the standard poodle puppies, one of which will be our first-ever show dog in a house filled with canine and feline rescued ragamuffins, are four weeks old today. All eight are fat and healthy, despite a scare with one white male puppy a week or so ago. We will meet them this…
Doctors Without Burdens: Another Mesh Court Goes Backwards
Maybe we have been doing this too long. Or maybe, like the prequels, spinoffs, and reboots that are so prevalent among streaming entertainment options, there is just a lot of repetition. In serial product liability cases, we hope that repetition leads to consistency of results or at least predictable rules of the game. Consider the…
Mismatched Ohio Law Decision Out of PPI MDL
This post is from the non-Reed Smith side of the blog only.
Mismatch your socks – you’re bold. Mismatch your shoes – you’re frazzled. Mismatch plates on a dining table – your creating ambience. Mismatch your pizza with pineapple – well don’t knock it until you’ve tried it. Treat the law like it’s your socks…
Confident Learned Intermediaries Defeat Warning Causation
Confident prescribing physicians and implanting surgeons are the best “learned” intermediaries. They’re experienced at what they do and aren’t intimidated by plaintiffs’ counsel and their threats of malpractice claims if they don’t testify the way plaintiffs want them to. Confident learned intermediaries stand by their medical decisions. Thus a confident learned intermediary’s testimony will defeat causation as a matter of law by stating that, notwithstanding a poor result, the treatment provided was standard of care, and even in hindsight they would not do anything different. Because we encountered many stand up learned intermediary surgeons in the Bone Screw litigation, several of the relatively early decisions from the 1999-2001 timeframe are Bone Screw cases.
Continue Reading Confident Learned Intermediaries Defeat Warning Causation
Unimpressed Learned Intermediaries Defeat Warning Causation
There’s a reason why prescribing physicians and implanting surgeons are called “learned” intermediaries. The law presumes that licensed doctors know what they are doing. That means that prescribers can make risk/benefit analyses to determine what prescription drugs or medical devices their patients need. As part of that process, such physicians necessarily also evaluate what risks they should tell – and not tell − their patients.
One consequence of a physician’s presumed medical competence is that a learned intermediary is within his/her rights to disregard a manufacturer’s warning altogether, to decide that a particular risk was not severe enough to make a difference, or to conclude that such a risk did not exist or was not material in the context of a particular patient’s medical needs. In all of these situations, the prescriber’s independent evaluation of what risks to credit, which to ignore, and which to omit in counseling patients breaks the causal chain of , entitling a manufacturer defendant to judgment on a warning claim concerning such risks. This scenario was the “third hypothetical” in our “Learned Intermediary Rule 201” post back in 2008.Continue Reading Unimpressed Learned Intermediaries Defeat Warning Causation
Not the Best Wisconsin Law Decision We’ve Ever Seen
A few years ago we did a couple of posts about the learned intermediary decision that arose from the Zimmer Nexgen Knee Implant MDL, and was subsequently affirmed by the Seventh Circuit Court of appeals. We designated the opinion In re Zimmer Nexgen Knee Implant Products Liability Litigation, 218 F. Supp. 3d 700 (N.D.…
D. Maryland Dismisses Pelvic Mesh Design Defect and Failure to Warn Claims
Multidistrict litigations are big piles of wrong. Wrong incentives invite the wrong cases, the wrong rulings, and the wrong results. Plaintiff lawyers park weak cases in MDLs, counting on ultimately collecting money for cases into which they invested virtually no work. Courts encourage that dysfunctional conduct by doing everything possible to force settlements, even if…