The definitive source for intelligent commentary on the law that matters for drug and device product liability cases
Substantive law:
3D Printing (2/5/15)
Administrative Law –Exclusion of administrative standards that are more lax than legal standards (4/8/10)
Administrative law – No private FDCA right of action (2/18/10)
Artificial Intelligence (7/24/17)
Biomaterials Access Act (8/19/16)
Bulk Suppliers – Liability (11/29/12)
Causation…
Happy New Year!
It’s been 3 ½ years since we last updated our index to our online research resources. That’s almost ⅓ of the total life of the blog, which started in way back in 2006. We’ve been blogging now for well over ten years. Our first substantive research post, on the presumption against…
We harbor a suspicion that half the drug/device tort cases we encounter are really medical malpractice cases in search of a deeper pocket (thank you medmal damage cap statutes). We’ve said before (e.g., https://www.druganddevicelawblog.com/2008/10/everything-you-need-to-know-about-wyeth.html) that both Levine and Riegel were really med-mal cases. That search for a deeper pocket is undertaken by the lawyer, …
Sometimes it takes us a while to catch on to things. This is more than a little embarrassing for a Jersey guy to admit, but while many of our high school classmates were devout Springsteen fans after his first two albums, Greetings from Asbury Park and The Wild, The Innocent, and The E Street Shuffle, we would not commit until after the release of Born to Run, by which time Bruuuuuuuce had become a national phenomenon. For years we saw shaved kale salad on menus and passed it by, thinking that we probably did not like kale and definitely did not like shaving, so why bother? Now it is our go-to appetizer for when we want to feel vaguely virtuous. We were late adopters of on-line banking, Apple Pay, and Twitter. Our garage will surely be the last in the neighborhood with a hybrid powered car, a self-driving car, or a flying car. On the way back from visiting the Drug And Device Law Son in Moscow, the British Airways entertainment offerings included season 2 of Catastrophe, an Anglo-American miracle of fun and filthy television comedy. Now we are queuing up season one on Amazon Prime. We are complete-ists, even backwards, if nothing else. Better late than never, right?
Today we are taking a look at an old case (two and a half-years old, but turning up in our topic searches just now). The case is called Meredith v. Nuvasive, Inc., 2013 U.S. 190130 (W.D. Texas Dec. 9, 2013). The plaintiff in Meredith alleged injuries from malfunction of a neuromonitoring device during spinal surgery. Her claims were for manufacturing defect, breach of implied warranties, negligence, gross negligence, and res ipsa loquitur. There is nothing especially unusual in any of that. But here is the man-bites-dog aspect of the case: the product liability plaintiff moved for summary judgment against two relatively unusual defenses, the manufacturer defendant as a “health care provider” under the Texas malpractice statute, and lack of any sale of a medical device precluding warranty claims.
For those of you in need of an executive summary, know this: The plaintiff in Meredith went one for two. (1) The court held that a device manufacturer was not a health care provider under the relevant medical malpractice statute. (2) Because the device was simply used in the hospital, and not sold to the plaintiff or anyone else, the defendant had a real shot at picking off the warranty claims.…
New Hampshire has always marched to its own flinty tune. It was the first colony to establish a government independent of British authority. It holds the first presidential primary every four years, insisting that candidates visit waffle shops and bloviate to the amused Yankee locals. You’ve probably seen New Hampshire license plates with the “Live Free or Die” motto. That motto supplied the title for episodes of both The Sopranos and Breaking Bad. What other state can make that boast? And what other state with such a small population can list among its offspring such eloquent luminaries as “Go West Young Man” editor Horace Greeley, “Liberty and Union, now and forever, one and inseparable” Senator Daniel Webster, “And miles to go before I sleep” poet Robert Frost, and we-can’t-think-of-a-quote President Franklin Pierce?
New Hampshire has played a significant role in American legal history. Daniel Webster won a case against the Devil. One of the early major U.S. Supreme Court cases involved Dartmouth College. We cannot remember what the case was about, though we think it had something to do with Delta House being put on double secret probation. The Bartlett v Mutual product liability case gave rise to some awful rulings in the New Hampshire federal court before the Supreme Court set things right in what might be our favorite case of the last five years.
In today’s case, Murray v. Hogan, #226-2013-CV-00600 (New Hampshire App. Ct. Feb. 2, 2015), a New Hampshire court addresses Riegel preemption, as well as the dreaded parallel claim exception. As far as we can tell, it is the first such decision from the Granite State. (We gratefully tip our cyber cap to David Ferrara at Nutter McClennen for sending the case our way.) The plaintiffs in Murray brought negligence and products liability claims claiming injuries from a knee replacement gone wrong. The plaintiffs sued several defendants, including the manufacturer of the artificial knee, as well as the sale rep who was in the operating room and assisted in preparing the artificial knee for insertion. The artificial knee was a class III medical device, so it comes as no shock that the company moved for summary judgment against all of the plaintiffs’ claims as being preempted by federal law. Even less of a surprise, the plaintiffs disagreed, arguing that federal preemption does not apply because: (1) the artificial knee did not meet federal regulations, (2) the plaintiffs would like to have some discovery, please, and (3) the company is vicariously liable for the conduct of the sales rep.…
We wanted to take a moment to let you know about the Drug and Device Defense Forum coming up on October 22nd. Two of our bloggers (McConnell and Yeary) are speaking along with a host of other excellent private practice attorneys and in-house counsel.
The agenda includes topics such as the current state of…
We’ve been blogging now for well over seven years. Our first substantive posts went up on November 15, 2006, and by now about 2450 have followed. We use this blog regularly as a research tool. A lot of you probably do, too. Even for us, it’s getting hard and harder to find what we’ve already…
For some reason, we recently found ourselves comparing our favorite defenses to our favorite rock bands. Preemption, of course, would be The Beatles, and Daubert/Frye the Rolling Stones. The learned intermediary rule could be Bob Dylan (I know, we’re showing our age, here). Comment k could correspond to Led Zeppelin, and state of the art might be The Who.
And it seems that, for each of these bands, there’s a song we really like that gets slighted (in our opinion) when it comes to air time on classic rock stations. For The Beatles that would be It’s All Too Much. For the Rolling Stones, when you discount those songs generally considered too raunchy for mainstream radio (one from Beggars Banquet, one from Let It Bleed and one from Goats Head Soup, you can guess which ones), we’d say the disrespected Stones song we like most is Child of the Moon. For Bob Dylan, we almost never hear Desolation Row on the radio (and thanks to Zimmerman’s late-in-life conversion to copyright trolldom, you won’t find a decent studio version on YouTube, either). For Zep, we’d award the buried treasure award to Immigrant Song. And finally, for The Who, we’ve always been peculiarly partial to the Punk and the Godfather.
Somewhat similarly disrespected as a defense to warning causation has been the prescriber’s failure to read the relevant warnings. One of the benefits of the learned intermediary rule is that it replaces self-interested plaintiffs with highly trained medical professionals when it comes to warnings, and in particular with respect to warning causation. While a plaintiff with dollar signs in his/her eyes will typically testify to whatever is necessary to establish warning causation (“Oh, yes, if I had only known about that risk, I would have rejected my oncologist’s recommendation and never taken the drug.”), medical doctors are most interested in the effective treatment of their patients, and thus typically tell it like it is. The truth often is that, for one reason or another, the prescribing physician did not rely on the particular warning in question, and thus a different one wouldn’t have made any difference.
There are a number of fact patterns that lead to physician non-reliance, the golden boy of the bunch being when a doctor (a trained professional, after all) already knew about the risk in question and thus did not need to be warned about it. Another commonly seen warning causation defense is when the doctor testifies that none of the plaintiff’s warning sophistry matters, s/he would still treat the plaintiff the same way today.…
Continue Reading Don’t Forget About A Prescribing Physician’s Failure To Read Warnings
After getting the latest favorable Facebook discovery decision in Largent v. Reed, and seeing that Largent cited to a recent New York case that we didn’t know about, we’ve come to the (probably belated) conclusion that the fast-developing area of e-discovery for defendants with respect to social media maintained by plaintiffs is worthy of…
One of the things we really like about blogging is that it puts us in touch with smart defense lawyers all over the country. Sometimes, when we know who’s litigating certain issues in particular mass torts, well give him/her a call to check if s/he knows anything new on that point. Other times, somebody will…