Search sales rep operating room

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.

Continue Reading Remand Granted . . . Claim Against Non-Diverse Sales Rep Allowed

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.Continue Reading It’s Getting Icy Out, So Don’t Fall and Hurt Your (Non-Diverse Defendant in a) Hip (Replacement MDL)

This post is from the non-Reed Smith side of the blog.

As we pointed out earlier this week, we are typically more interested in defense victories on this blog.  But every once and a while, we find cases that go the other way that we believe merit a mention. Sometimes that is because the decision is too significant to ignore.

Sometimes it is because of the court that renders the decision. Sometimes – like yesterday and today – it is because we want to remind our readers of issues that while not common, are nonetheless real.  Unfortunate issues that crop up from time to time. Yesterday, that was about a loss on fraudulent joinder involving claims against a sales representative.  As we mentioned then, more often than not – defendants win that issue.

Today’s case continues the sales representative theme.  A couple of years ago, we posted a cumulative piece on cases dealing with sales representatives who are present in the operating room.  It isn’t something that we come across very often and from our review, the decisions are split (largely based on the particular facts) as to whether the actions of a sales representative create a cause of action against the device manufacturer.  The issue, boiled down to basics, is whether the sales rep got too involved in the actual treatment of the patient or use of equipment during surgery. It was on that basis that the plaintiff in Medtronic, Inc. v. Malander, 2013 Ind. App. LEXIS 499 (Ind. Ct. App. Oct. 11, 2013) brought a negligence claim against the manufacturer of her husband’s defibrillator.  The defibrillator, a Class III PMA medical device, was implanted in 1997 and upgraded in 2004.  In 2006, plaintiff’s husband began experiencing a problem with the device known as V-V intervals.  Id. at *3.

During another upgrade surgery, one of defendant’s “clinical specialists” was present to assist with testing the device.  The test revealed no problems.  During the procedure, plaintiff’s surgeon also called defendant’s “technical services department” requesting information on V-V intervals and lead failures.  Id. at *4.  Defendant’s technicians responded: “Don’t worry about that; it doesn’t mean anything . . . I don’t think that’s a problem . . .”  Id. The surgeon did not replace the device. Plaintiff’s husband died a month later, following more episodes of V-V intervals. Plaintiff’s claims against the defendant included design defect, failure to warn, failure to recall, and failure to recommend removal during the 2006 surgery.  Id. at *5.Continue Reading Another Sales Representative Cautionary Tale

            Today we look at a common topic – sales representatives – in a slightly different light.  We are all well-versed in the learned intermediary doctrine.  More and more often, plaintiffs’ failure to warn claims in pharmaceutical and medical device cases are thwarted by knowledgeable physicians who apply their independent medical judgment in deciding whether a

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One of the blogposts that generated a lot of “Thanks, I needed that” responses from our readership was our 2022 post, “Remote Depositions in MDLs.”  For that reason, we have updated it by adding references to additional MDL orders on that subject that have been entered since early 2022.  We pay particular attention to MDL orders because, due to their stakes, every procedural jot and tittle is gone over with a fine-toothed comb.  The “litigate everything” mentality in MDLs produces the most comprehensive consideration of issues that arise in remote depositions generally.  We asked one of our crack legal assistants to look for additional MDL orders during this time frame to see what MDL transferee judges – advised by the parties – have had to say most recently about the conduct of remote deposition.Continue Reading Remote Depositions in MDLs 2.0

A little while ago, Bexis attended a Lawyers for Civil Justice semi-annual meeting, at which he received that organization’s “Outstanding Contributor Award” (in full disclosure, so did a half dozen other members).  With the soon-to-be-adopted amendments to Fed. R. Evid. 702 having now been approved by the Supreme Court (with only the unlikely step of a congressional veto remaining), the question was what happens next.

These amendments expressly enshrine the expert “gatekeeper” function in the text of Rule 702.  The next step is whether they can be duplicated – or paralleled − in state rules of evidence.  We think that they can, and for a state (like Pennsylvania and a number of others) that still follows the “Frye” standard looking to the “general acceptance” of expert testimony as the touchstone to admissibility, a Rule 702 state-law equivalent might look something like this:Continue Reading 50-State Survey of State Court Decisions Supporting Expert-Related Judicial Gatekeeping

Today’s guest post by Reed Smith’s Kevin Hara arises indirectly from the Zantac MDL, but addresses a recurring preliminary question of federal jurisdiction − fraudulent joinder. That issue, in turn, involves product identification (another problem in MDLs) and a pointer for pharmacies that want to avoid being involved in pharmaceutical litigation. As always our guest…

The United States Supreme Court in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), determined that “off-label usage” is “accepted and necessary” by both the FDA and the medical community.  Id. at 350.  Thus, “[p]hysicians may prescribe drugs and devices for off-label uses.”  Id. at 351 n.5 (citation and quotation marks omitted). …

Manufacturers supervising medical doctors?  In two words, they don’t.  Yet plaintiffs, particularly in cases where preemption forecloses more normal product liability claims, try to get courts to impose such duties.  We took a look at that issue back during the early days of the blog, when it was still a Bexis/Herrmann operation, in our September…

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