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

Choice of law doesn’t get too much attention here at the DDL blog. That is due in some part to the fact that there really isn’t a defense-oriented position to take on it. Which state’s law should apply is a very case-specific analysis and in any given case, you might come out differently. It really depends on which state’s law is more favorable to your legal arguments in a particular scenario. The second reason it probably doesn’t get much attention from us is that in most personal injury, products liability cases, plaintiff’s home state’s law governs – the law where the injury occurred.

But what about when a plaintiff lives in one state but seeks medical treatment in another. Not to be considered disparaging of the many excellent healthcare facilities in southern New Jersey (where this blogger resides), but when you live a stone’s throw from some of the leading specialists in the country who happen to be across the state line in Philadelphia, you take that ride across the Ben Franklin Bridge. That’s not an unusual situation, making the choice of law question of interest.

In Finnerty v. Howmedica Osteonics Corp., 2016 U.S. Dist. LEXIS 123071, *2 (D. Nev. Sep. 12, 2016), plaintiff, a resident of Nevada, sought medical treatment from an orthopedic oncologist located in California. Plaintiff had cancer in his left leg that required either amputation of the leg or a total knee replacement. Plaintiff opted for the replacement and defendant’s modular replacement device was implanted. Id. At the time of surgery, plaintiff was “clinically obese.” Id. The surgery took place in March 2005 and plaintiff had no complications until 2011 – over 6 years later. Id. at *2-3. In August 2011, plaintiff started working as a shuttle driver for a car rental company. The job required him to lift luggage, weighing up to 80 pounds, on a repetitive basis. Id. at *3. In December 2011, while lifting luggage, plaintiff heard a “pop” in his left knee. During revision surgery, it was discovered that the implanted device had fractured. Id. Plaintiff continued to suffer complications and eventually his left leg was amputated.

Plaintiff sued the device manufacturer alleging failure to warn, negligence, strict liability design defect, manufacturing defect, and breach of express and implied warranty. Id. Defendant moved for summary judgment on all counts.


Continue Reading An Interesting Choice of Law Question

Today’s case is also about statute of limitations, but we thought adding that to the title would guarantee nobody read any further. None of these are what we’d call “page-turning” – or maybe in the blog world it should be “scroll-worthy” — topics. But, any one of them can be a game changer.   When they combine to lead to a dismissal in circumstances that our readers may find themselves in, we think they are worth a mention.  But we’ll make it quick.

As is so often the case, plaintiffs’ counsel gathered their clients and filed a single mass action lumping together plaintiffs from all over the country.  Jaeger v. Howmedica Osteonics Corp., 2016 U.S. Dist. LEXIS 16493 at *7 (N.D. Cal. Feb. 10, 2016).  The defendant, again in a fairly common response, moved to sever the individual misjoined cases and to transfer them to plaintiffs’ home districts. Id. at *8.  Defendant’s motion was granted.  The original misjoined complaint was filed in the Southern District of Illinois. Defendant is a New Jersey corporation. Plaintiff Jaeger resides in California, where she also received the medical treatment at issue in the case.  Id. at *17.  Plaintiff Jaeger’s case was therefore transferred to California.


Continue Reading Personal Jurisdiction and Choice of Law

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

It can be difficult to have a completely consistent position on choice of law issues.  That’s because state law varies and sometimes you’ll find you are better served by the law of the forum state, other times by the law of the plaintiff’s home state, and sometimes by the law of the defendant’s home state. The issue, the facts, and the law all drive the parties’ preferences.

Typically, however, we tend to favor the notion that liability issues should be governed by the law of the plaintiff’s residence.  That is where the alleged treatment and injury occurred, and those factors are important in any choice of law analysis.  Such a rule also imposes some limit on blatant forum-shopping by plaintiffs.  But what law should apply to punitive damages?  This is where things can get a little fuzzy.  On punitive damages, the balance of interest between plaintiff’s residence and defendant’s residence is more even – making the analysis trickier and also affording more opportunity to craft an argument for the law of the state that is more defense-friendly.


Continue Reading Role Reversal – Plaintiff Asks for New Jersey Punitive Damages Law

Multidistrict Litigation – the name says it all.  It is an amalgamation of related cases from multiple federal district courts across the country.  Think about the journey a single case in an MDL may take.  Plaintiff files in state court.  Defendants remove the case to federal court based on diversity.  But as soon as the

If anyone gave out prizes for the most incomprehensibly named multi-district litigation, the one currently proceeding as “In re Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation” would be right up there.  Rarely have we encountered a case name with four words in a row that, without a dictionary, we didn’t know what they meant.  Basically, this is product liability litigation about two dialysis solutions (Granuflo and Naturalyte) over alleged serious adverse reactions related to effects on blood chemistry.

This MDL is currently pending in the District of Massachusetts.  Just after the new year the Fresenius MDL (that’s all the designation really needed) made some news with a quartet of decisions.  We’ll describe them for you briefly.

First Decision

In In re Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation, ___ F. Supp.3d ___, 2015 WL 44589, at *1 (D. Mass. Jan. 2, 2015), the court denied remand to a batch of California plaintiffs.  As is so often the case in removal/remand, there was a lot of gamesmanship going on.  The defendant proved, to the court’s satisfaction, that the principal place of business of the target defendant, Fresenius, USA, had been its Massachusetts for almost a decade, since a merger.  Id. at *2.  It satisfied the relevant “nerve center” test (see here for more on that) for personal jurisdiction.


Continue Reading Fresenius Potpourri

It is the time of year for reflection and resolutions. We look back on the ups and downs of the year that is about to end and look forward to the New Year with hope, promises and predictions.  As for 2015 here at the DDL Blog – we hope we will continue to be helpful and informative to our readers, we promise that Bexis will find at least one decision a quarter worthy of a full-blown tirade, and we predict that McConnell will keep us up-to-date on both legal trends and what’s hot on TV and at the movies.

As for 2014, Bexis is posting his annual Best Of and Worst Of lists.  Keeping with that theme, we decided to post about a case that has some of both, the good and the bad.  The case is Brown v. Johnson & Johnson, 2014 U.S. Dist. LEXIS 173800 (E.D. Pa. Dec. 9, 2014) and it involves the over-the-counter drug Children’s Motrin.  Wanting to end on a high note, we’ll dispense with the low points of the decision first.

First up, the preemption rulings.  The court held that plaintiff’s failure to warn claim was not preempted because the defendant had not shown that it could not have used the CBE process to change the warning label.  Establishing warning preemption in a drug case is an “exacting burden” for defendants requiring clear and convincing evidence that the FDA would have rejected the warning proposed by plaintiff.  Id. at *2-3.  The court applied the same “exacting burden” to defendant’s design-related preemption defense, finding a lack of evidence that the FDA would have rejected a proposed design change as well.  Id. at *6.


Continue Reading Celebrating the Highs and Lows

Yesterday the Third Circuit upheld a District of New Jersey decision denying class certification as to plaintiffs’ consumer fraud and unjust enrichment claims.  Grandalski v. Quest Diagnostics Inc., 2014 U.S. App. LEXIS 17543 (3d. Cir. Sep. 11, 2014).

Plaintiffs alleged that Quest had overbilled them for testing services and their complaint proposed multiple nationwide

We have a soft spot in our heart for the more technical, lawyerly parts of what we do.  Any nimrod on the street can lob in his or her two cents on freedom of speech or search and seizure, but it takes a legal craftsman to talk sensibly about choice of law, or jurisdictional or procedural issues.  Sometimes we here on the blog approach such issues warily. We feel the need for circumspection, since we do not know which side of the issue we might want to argue in some future case.  At the same time, the likelihood of repeat transactions, where you could be on either side of the transaction, should theoretically push rules toward a rational middle-ground.

On choice of law, we tend to favor the notion that liability issues should be governed by the law of the plaintiff’s residence.  That is where the alleged treatment and injury occurred, and those factors are important in any choice of law analysis.  Such a rule also imposes some limit on blatant forum-shopping by plaintiffs.  Further, such a rule also makes aggregation (class actions, consolidation) less likely because the different plaintiffs will have different laws applying to their claims. Class actions are no longer much of a threat in personal injury cases, but we still find the vexing presence of varying state laws to be occasionally useful. But what law should apply to punitive damages?

In Williams v. Novartis Pharmaceuticals Corp., 2014 U.S. Dist. LEXIS 55352 (S.D. Ohio April 21, 2014), we are treated to a rational choice of law analysis.  It is yet another Aredia-Zometa case.  Some day, Hollingsworth or one of the luminaries on that defense team will be able to author an entire hornbook on all of the issues that have cropped up in that litigation.  Williams was actually a couple of cases, both originally filed in the United States District Court for the District of Columbia.
The cases ended up in the Southern District of Ohio, but the parties agreed that the original filing meant that the District of Columbia’s choice of law rules  applied.  (As we have mentioned before, that procedural wrinkle could conceivably incite forum-shopping.)   The parties also agreed that Ohio law governed the plaintiffs’ claims with respect to issues of liability and compensatory damages, because the plaintiffs were Ohio residents.  Where the parties parted company was on choice of law for punitive damages.


Continue Reading New Jersey Law Governs, and Precludes, A-Z Claim for Punitive Damages

Way back in law school our moot court topic involved allegations of “wrongful birth” or “wrongful conception.”  The plaintiffs alleged that a doctor failed to detect a catastrophic birth defect, thus depriving the parents of the option to terminate the pregnancy.  The case involved intractable moral/philosophical  and, thus, legal issues.  That “thus” feels mandatory, but perhaps will not withstand rigorous analysis.  Nevertheless, it’s a touchy subject.  Such claims suggest, at least implicitly, that it might be better never to have been yanked from the void into this maelstrom of meat.  Many people recoil from that notion.  When a recent New Yorker article quoted the father of the Newtown, Ct shooter as wishing his son had never been born, the sentiment seemed both sensible and shocking.

Law school seems like a long time ago, and the intervening years have been blissfully bereft of issues of wrongful conception.  But a case last week caught our eye and contains some of these same issues, as well as others that are more typical in our practice.  The case was Vanden Bosch v. Bayer Healthcare Pharmaceuticals, Inc., 2014 U.S. Dist. LEXIS 48055 (W.D. Ky. April 8, 2014), and it concerned an intrauterine contraceptive system.  One of the plaintiffs, Ms. Vanden Bosch, was an Indiana resident.  She claimed that the contraceptive system caused her to suffer from interstitial cystitis.  The other two plaintiffs were Kentucky residents.  They were a mother and daughter.  The mother claimed that the contraceptive caused a chromosome deletion and that, consequently, the daughter was born with severe genetic defects.

The first issue was choice of law.  This topic can seem dry, but it can be outcome dispositive and in this case we were treated to a rather colorful statement of law that Kentucky courts “are very egocentric or protective concerning choice of law questions” and there is a “strong preference in Kentucky for applying Kentucky law”.  Vanden Bosch, 2014 U.S. Dist. LEXIS 48055 at *7.  Kentucky has a one year statute of limitations and plaintiff Vanden Bosch acknowledged that her claim was barred if that one-year rule applied.  She tried to escape the one year rule, but could not.  In responding to the defendant’s motion to dismiss, Vanden Bosch submitted an affidavit stating that the Amended Complaint “mistakenly alleges the place of the device insertion as Louisville, Kentucky” and that to the best of her recollection, her contraceptive device was actually inserted in Indiana.  Indiana had a longer SOL.  But the court refused to consider these new facts, as they were outside of the pleadings.   Id. at *9 n. 2.  It does not much matter, because Kentucky’s borrowing statute applies the statute of limitations of another state only when a cause of action arose in that state and only when the other state has a shorter statute of limitations.  The real problem for Vanden Bosch was the filing of her case in Kentucky.

And now we get to the wrongful conception issue.  To the extent that plaintiff Hogue was trying to recover damages based on the birth of her daughter, the court was having none of it:  “A parent has no cognizable legal injury when alleged wrongdoing results in a genetically or congenitally impaired human life, even severally impaired….”  Id. at *17.  Put another way, a “child’s life cannot be considered a legally cognizable injury.”  Id. at *18.  That’s it.  There is considerably less agonizing over that issue than we recall from our law school exercise.  Real life can be cut and dry.  Law school never is.    The former pays better.


Continue Reading Mixed Reasoning and Wrongful Conception

Happy thanksgiving to all.  We all have plenty of things to be thankful for.  We also have some things we’re not thankful for.  This post discusses one of those.

The recent opinion in Rowland v. Novartis Pharmaceuticals Corp., ___ F. Supp.2d ___, 2013 WL 6145119 (W.D. Pa. Nov 22, 2013), has us shaking our heads.  That’s not so much because of the legal issue being fought over, but rather because of the machinations that led to a most peculiar result.

Basically, forum-shopping paid off.

Rowland involved three plaintiffs, Rowland, Machin, and Orr, all of whom are (or were) Pennsylvania residents.  Rowland, 2013 WL 6145119, at *1.  However, none of them filed suit in Pennsylvania.  Rowland and Machin brought suit in D.C. and Orr in New York.

Id. at *2.

Rowland is yet another Aredia/Zometa case.  We’ve discussed the underlying issue − whether availability of punitive damages should be determined under:  (1) the law of a corporate defendant’s principal place of business, or (2) the law of the place of the plaintiff’s injury – before.  See here and here.


Continue Reading Making Forum-Shopping Pay