Every state has its peculiarities, oddities, firsts, and little known facts. For instance, did you know that New Jersey (this blogger’s home state) has the tallest water tower in the world or that it was the site of the first baseball game? Well, our case for today is from Tennessee.  So, did you know?

The world’s largest artificial skiing surface is located in Gatlinburg

Tennessee was the last state to secede from the Union during the Civil War and the first state to be readmitted after the war.
  • Bristol is known as the Birthplace of Country Music
  • Oak Ridge is known as the Energy Capital of the World
  • Tennessee has more than 3,800 documented caves
  • Nashville’s Grand Ole Opry is the longest continuously running live radio program in the world. It has broadcast every Friday and Saturday night since 1925
  • Coca-Cola was first bottle in 1899 at a plant in downtown Chattanooga after two local attorneys purchased the bottling rights to the drink for $l.00


Continue Reading Quirky Facts About Tennessee and Choice of Law

Have you ever been sitting in a courtroom and wondered why you were there?  We don’t mean that in a metaphysical sense, though that probably happens sometimes, too.  No, we are thinking of the situation where you realize that neither the plaintiff nor the defendant are citizens/residents of the jurisdiction, and that the events in issue did not occur there either.  Why are we here?  This sort of thing happens to us a lot in courtrooms in New Jersey and Pennsylvania.  Of course, there is an answer to the question: that is where the plaintiff filed the lawsuit.  That choice of forum, so we are told by many authorities, is entitled to some respect.  Okay, but how much?  Forum-shopping is not one of the glories of American jurisprudence.  It is a form of lawsuit arbitrage that inflicts inappropriate costs on parties and court systems.  (Of course, some courts have unashamedly promoted themselves as litigation-tourist destinations.) When a plaintiff goes forum-shopping, what is being purchased?  It could be plaintiff-friendly judges, jurors, laws, or procedures.   It is ineluctably unseemly.  Plaintiffs, being plaintiffs, sometimes push things a bit far,  Forum shopping starts to look like forum-shoplifting.

If we had represented the defendant in the recent case of Kuennen v. Stryker Corp., 2013 U.S. Dist. LEXIS 1555571 (W.D. Va. Oct. 30, 2013), we would have wondered why we were in the place where the case was originally filed, the District of Columbia.  The plaintiff, a resident of Virginia, underwent arthroscopic shoulder surgery in Virginia.  The plaintiff received a pain pump made and sold by the defendants, to infuse a local anesthetic into the shoulder joint space.  Now the plaintiff was alleging that the pain pump caused her to lose cartilage in her right shoulder joint.  The defendants were both Stryker entities, which we will call “Corp.” and “Sales.”  Neither was a citizen of D.C.  The pain pump was not designed, manufactured, or sold in D.C. and the alleged injury occurred in Virginia.  The defendants did not simply wonder why they were being hauled into a D.C. court; they successfully moved under section 1404 to transfer the case to the place where it should have been filed, Virginia.  End of forum-shopping, right?

Maybe.  Yeah.  But not without a tussle.  The defendants moved for summary judgment based on the statute of limitations.   The defendants contended that the plaintiffs’ claims were barred by the Virginia two-year statute of limitations.  In opposition, the plaintiffs asserted that the D.C. statute of limitations should apply with its favorable discovery role as to the accrual of the cause of action. The parties agreed that if the Virginia statute of limitations applied, the case would be dismissed, and if the D.C. statute applied, the case would continue, at least for a while.  Why is it even an issue?  The case is in Virginia, right? Not so fast.  When an action is transferred under section 1404(a) from one district court to a district court in another state, the transferee court must apply the same law as the transferor court would have applied.  The forum-shopping effect lingers.


Continue Reading No D.C. Personal Jurisdiction = No Loose D.C. Statute of Limitations = No Case

Due to Reed Smith’s involvement with the Nuvaring litigation discussed below, this post is from the Dechert side of the blog only.

As an almost lifelong resident of New Jersey, this member of our blogging team knows things like —  it’s “the shore” not “the beach”; how to navigate a circle, but not how to pump my own gas; jug handles are for making lefts not for pouring water; and where the Highway 9 is from Springsteen’s “Born to Run.”  I’ve also heard all the jokes.  Toxic waste, the accent, the big hair, the malls.  Or, how about that tolls are collected on all New Jersey bridges as you leave the state.  Why?  Because nobody would pay to go into New Jersey.  Well, maybe not nobody.  In the last ten days, three separate courts have ruled on defendants’ motions seeking to embrace New Jersey punitive damages law.  That’s right, in addition to Thomas Edison, Frank Sinatra, Jack Nicholson, corn and tomatoes, and full service gas stations, New Jersey has some pretty good law too.

As we’ve said before, when it comes to choice of law on punitive damages it is a question of “where you stand depends on where you sit.”  And if you sit in New Jersey, you are probably well aware that New Jersey’s Products Liability Act immunizes drug and device manufacturers from punitive damages (there is that fraud-on-the-FDA exception, but we all know that’s preempted).  So while this certainly isn’t a one size fits all argument, it’s no surprise that New Jersey manufacturers (or manufacturers from any state with good punitive damages law) argue that their home state has the greater interest with respect to the conduct at issue on a punitive claim.

While we’ve posted several times on this issue (see here for example), it remains both important and intriguing because courts continue to come down on both sides of the issue.  To start, let’s compare Troutt v. Novartis Pharms. Corp., 2013 U.S. Dist. LEXIS 102135 (M.D. Fla. Jul. 22, 2013) and Prather v. Organon USA, Inc. (In re Nuvaring Prods. Liab. Litig.), 2013 U.S. Dist. LEXIS 99734 (E.D. Mo. Jul. 12, 2013).  Hmmm.  One decision from Florida and one decision from Missouri.  Can you guess which one we like better?


Continue Reading A Little Love for the Garden State

Today we discuss the second summary judgment decision entered in the pelvic mesh MDL bellwether cases.  Stay tuned for a Daubert decision coming soon.  And again, these posts come solely from the Dechert side of the blog.

This summary judgment ruling can be found at In re: Bard, Inc. Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187, 2:11-cv-01224, 2013 U.S. Dist. LEXIS 78052 (S.D.W.V. June 4, 2013).  Not surprisingly, since we are talking about the same MDL and same bellwether pool, today’s case and yesterday’s case bear some striking similarities.  To begin with, we are dealing with the same product — Avaulta Plus Biosynthetic Support System – and essentially the same challenges to plaintiff’s claims and to defendant’s affirmative defenses.

And, many of the rulings were the same.  Summary judgment granted on plaintiff’s manufacturing defect claims (no evidence of deviation from a standard or specification), Id. at *8-14, warranty claims (no privity), id. at *24-25, and negligent inspection, marketing, packaging and selling claim (no opposition).  Id. at *25.  The court’s rulings on plaintiff’s motion for summary judgment as to defendant’s affirmative defenses were nearly identical as well.  Id. at *25-35.

There are, however, two aspects of today’s case that we thought merited separate treatment. The first is an interesting choice of law twist and the second is a different result on failure to warn.

Today’s case involves plaintiff Rizzo who filed her lawsuit in the Northern District of Georgia.  It was then, of course, transferred to the MDL pending in the Southern District of West Virginia.  And, as the court points out, when deciding questions of state law, and MDL judge “must apply the state law that would have applied to the individual case[] had [it] not been transferred for consolidation.”  Id. at *5.  And choice of law is a question of state law.  So, the court had to look at Georgia’s choice of law rules.


Continue Reading Pelvic Mesh Bellwethers Continued

In a departure from blog tradition (and possibly etiquette), I’m going to break the fourth wall and speak in the first-person singular for a moment. After much encouragement from my colleagues and several not-so-subtle hints from Bexis directed at having to post yet another guest post from me, today I become an official member of the DDL

We’ve been pondering what to do with the latest 70+ page whopper from the Philadelphia Court of Common Pleas for a couple of weeks.  All the while Maya v. Benefit Risk Management, 2012 Phila. Ct. Com. Pl. Lexis 449 (Pa. C.P. Philadelphia Co. Dec. 31, 2012) (also at 2013 WL 663158 – but essentially useless due to lack of internal pagination), has been sitting around, begging for us to take it on.

What would it take to make Maya better?

Well, just about everything would have to be substituted.  If that happened the $10 million plaintiff’s verdict in Maya would be toast….  Which reminds of the classic substitution scene from the movie Five Easy Pieces (hence the title of the post).  That was pretty brutal, but so is the opinion in Maya.  We’ll try to be less brutal in our analysis than Jack Nicholson was before he became a Lakers fan.  But without any substitutions – well, ATRA might want to think again before letting the Philadelphia court system off the hook.

A lot of things could be said about the Maya decision – since it touches on so many issues.  But we’ll limit ourselves to five – the five theses in Maya that are just plain wrong.

Waiver for Preserving Too Many Issues

Maya was another high-stakes SJS/TENS case.  This medical condition is terrible, but it is an example of what used to be called an “idiosyncratic reaction.”  Most doctors – at least those not serving as plaintiffs’ experts – admit that they don’t know what triggers the disease.  It’s been blamed on just about every drug (prescription or non-prescription) imaginable, but it could just as well be a reaction to something else in the environment, something that’s ordinarily non-bioreactive, such as plastic.  But plastic manufacturers don’t have to keep records of adverse reactions.  Drug companies do, and those reactions duly get listed on product labeling – whether there’s causation or not.


Continue Reading Five Uneasy Theses

One of the remand courts in the Aredia/Zometa litigation recently issued a decision on various motions in limine.  See Brown v. Novartis Pharmaceuticals Corp., 2012 U.S. Dist. LEXIS 104985 (E.D.N.C. July 27, 2012).  Here’s the rundown of the “good,” the “not-so-good,” and the “it depends.”
The good:
·                     Post-injury label changes: The court

            When last we wrote of punitive damages in the Aredia/Zometa litigation, we predicted the parties were entangled in a dance that would involve back and forth on both sides and that wasn’t likely to end anytime soon.  See prior post.   We were right on both accounts. 
Then we brought you a favorable decision

On November 18, 2011, the defense scored a victory in the New Jersey Zometa/Aredia mass tort program, when the court granted a motion to apply New Jersey punitive damages law.  The plaintiff was a Virginia litigation tourist who brought suit in New Jersey state court despite his treatment having nothing to do with the state.