Search results for: repose

For reasons too numerous to mention, neither of us can comment on the recent decision in Montgomery v. Wyeth, No. 1:05-CV-323, slip op. (E.D. Tenn. Mar. 19, 2008) (copy here) (now published at 540 F. Supp.2d 933).
But you should know about that decision, so we’re describing it (very briefly) here, stripped of…

We have blogged several times about the somewhat esoteric issue of whether intangible items – chiefly computer software, website algorithms, and other electronic information – is treated as a “product” for purposes of imposing strict liability on their creators.  It’s an interesting topic; Eric recently wrote a paper on it, and Bexis is putting together a “white paper” for the Product Liability Advisory Council on the same subject.  From these exercises we concluded that a 50-state survey on intangibles as “products” for product liability purposes would be both doable and useful.…

Continue Reading How the Fifty States View Electronic Data as a “Product”

Montana became the first state to ban TikTok this month.  You no doubt have seen the press and have read the spirited discussion condemning foreign spies on the one hand and championing First Amendment rights on the other.  Litigation has already commenced.  But, while all that was developing, you may have overlooked that Montana…

You’ve no doubt heard of the 5 W’s (who, what, where, when, why) as applied in journalism or police investigations.  They also apply to litigation.  For example, personal jurisdiction and forum non conveniens are “where” issues, statute of limitations and statute of repose are “when“ issues, and the metaphysical doubt we defense hacks experience while laboring under the skeptical eyes of pro-plaintiff judges and the vast indifference of the skies is a big – perhaps the biggest – “why” question.

There are also “who” questions, such as whether the plaintiff has standing or whether the right entities are being sued.  That last issue crops up all the time, including when plaintiffs pursue parent or innovator companies, pharmacies, sales reps, distributors, etc.  

In Brown v. GlaxoSmithKline, LLC, 323 Or. App. 214 (Oregon Ct. of App. Dec. 14, 2022), the issue was whether a hospital that charged for a pharmaceutical drug administered to a patient in its emergency department was a “seller” engaged in the business of selling the drug subject to strict product liability under Oregon’s product liability statute.  The trial court granted the hospital’s motion for summary judgment, holding that the hospital was not “in the business of selling” the drug.  The plaintiff appealed, got the appellate court to overturn the summary judgment, and kept the hospital in the case.…

Continue Reading A Hospital Can be a Product Liability Seller-Defendant in Oregon 

Recently, in describing a decision granting summary judgment in an IVC filter case, we identified some additional analyses we would have liked to have seen:

[W]hile interrelated, we think the concepts of a “compensable injury” and causation are separate.  For instance, an exposure might cause a risk of future injury, but state law may hold that such a risk without present injury is not compensable.  Or a subclinical injury like pleural thickening may not be compensable, in part because of the inconsistency with the principles of accrual of claims for statute of limitations purposes.  Is a medical procedure not required by specific symptoms—regardless of what caused them—itself a compensable injury?  We think not.  A surgery may be part of the damages allegedly related to an injury allegedly caused by the drug/device/exposure, but is not an injury in and of itself.  Gomez did not delve into this either.

That same day—but well after we had set our prescient post to publish—the court in Fuss v. Boston Sci. Corp., No. 2019-02348, 2022 Mass. Super. LEXIS 251 (Mass. Super. Ct. Oct. 20, 2022), did those same analyses in another IVC filter case.  Rather than fall prey to the post hoc ergo propter hoc fallacy that plagues plaintiffs’ causation theories in so many drug and device product liability cases, we will admit this is mere coincidence.  After all, compensable injury seems like an obvious threshold issue in an IVC filter case where perforation of the inferior vena cava (IVC) is the only claimed injury.

Given the facts of Fuss, we will go a step further and say that it would be better if there were a way to get rid of cases without compensable injuries without the time and expense of going through fact and expert discovery and briefing an all-issues summary judgment motion with accompanying Daubert motion.  After a pulmonary embolism, plaintiff had his IVC filter implanted by an experienced vascular surgeon in 2007.  It has remained in place, without embolism or any symptoms tied a complication, for the fifteen years since.  Then plaintiff saw a lawyer advertisement, was sent by lawyers to get a CT scan ordered by a doctor he did not know and never met, and brought a lawsuit over an alleged perforation.  After suing, plaintiff conferred with his implanting surgeon, who, with the benefit of an x-ray, concluded the filter was doing its job and required no treatment or intervention.  In deposition, plaintiff admitted that he had been asymptomatic.  After the parties completed discovery and teed up motions for both summary judgment and exclusion Massachusetts’s version of a Daubert motion on plaintiff’s catchall expert, plaintiff still had never received any treatment or intervention.…

Continue Reading No Muss, No Fuss In Disposing Of Litigation-Driven “Injury”

Great decision from the Paraquat MDL recently, rejecting public nuisance claims in the product liability context.  In re Paraquat Products Liability Litigation, 2022 WL 451898 (S.D. Ill. Feb. 14, 2022), involved what, in the herbicide context, is the equivalent of a prescription drug.  That product “is not available for purchase by the public or…

We have promised ourselves that we will stream this week’s “This Is Us” episode when we finish this blog post.  We love this series beyond reason, and we dread its imminent demise, notwithstanding the title’s grammatical transgression.  (We generally condition any sort of allegiance on correct use of predicate nominatives.)  We are struck, over and…

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Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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