Choice Of Law

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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…

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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

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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

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            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

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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. …

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            It’s August – days are getting shorter, pencils and notebooks have replaced beach balls and suntan lotion in the stores, football is encroaching on baseball.  Now, think of where you would like to be as the twilight of summer approaches.  At a barbecue with fresh Jersey corn and tomatoes?  Walking along the beach in

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We were quite concerned a couple of years back when, in the wake of the West Virginia Supreme Court’s horrible decision in State ex rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899 (W. Va. 2007), rejecting the learned intermediary rule, a federal district court in that state undertook to apply West Virginia…

It’s cold here in Philadelphia and in much of the country. Really cold, your-car-makes-weird-noises-you-start-it cold. When it’s this cold up here, people start fantasizing about moving to Florida and leaving their snow shovels, rock salt, hats, coats, gloves, and all that behind.
Is there a point to this about drug and device law, you may…

Drug & Device Resources

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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