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

Defendants in Pizzitola v. Ethicon, Inc., filed motions to exclude two of plaintiff’s experts and both decisions (two orders issued) heavily favored the defense, rejecting recurrent design defect arguments by plaintiffs.

The product at issue is synthetic pelvic mesh.  Plaintiff’s first challenged expert was a gynecologic surgeon.  While is area of practice may overlap with issues in the case, his report went well beyond both relevant issues and his area of expertise.  Namely, plaintiff’s expert wanted to opine that lots of things were alternative designs that in fact were not.  Starting with a different medical procedure altogether.  “It is not an alternative design of any product.  In fact, it is not a product at all.”  Pizzitola I, 2022 U.S. Dist. LEXIS 184352, *6 (S.D. Tex. Oct. 7, 2022).  Plaintiff argued the testimony was relevant to a risk/utility analysis but showing that a different medical procedure may be safer, “does not affect whether a product has utility and/or risks.”  Id. at *7.  The decision to perform a different medical procedure lies within the medical judgment of the treating surgeon and has no bearing on the design of the device at issue.  Id. 

Continue Reading Two Strikes Against Plaintiff’s Experts in Texas Pelvic Mesh Case

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If the pelvic mesh litigation ever ends, the tongue of history will tell a tale of specious plaintiff theories that hoodwinked judges and juries into condemning good products. Plaintiffs extracted millions of dollars and erased product lines by cobbling together irrelevant workplace material handling sheets, counterfactual stories in which the FDA does not exist, and

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The complaint in Robinson v. Ethicon Inc., Action No. H-20-3760 (S.D. Tex.) was filed in 2013.  To put that in perspective, Amazon’s first Alexa-enabled device, the Echo, wasn’t on the market.   There’s a good chance you weren’t running your phone on 4G yet.  And, if you were using earbuds with your phone, you were

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We’ve used the term one-two punch to refer to a couple different situations – Daubert wins followed by the grant of summary judgment; Mensing preemption for generic manufacturers and no innovator liability for brand manufacturers.  And we’re going to dust it off again today to refer to Couturier v. Bard Peripheral Vascular, Inc., —

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A couple of weeks ago we compared New Jersey litigation with New Jersey food and decided we liked the food better. No aspersions were intended. After all, we grew up in New Jersey and still worship at the altars of Seton Hall Prep, Bruce Springsteen, and the New York football Giants. Anyway, we might need