The pelvic mesh remand hits just keep coming. We like Shostrom v. Ethicon, Inc., 2022 U.S. Dist. LEXIS 55748 (D. Colorado March 28, 2022), because it hammers some ubiquitous plaintiff mesh experts and because it finds a way to depart from an awful MDL ruling. The fact that the opinion comes at the expense
It’s a unique relationship based largely on knowledge and trust. Doctor’s not only have to rely on their medical knowledge, but they need to apply that to their knowledge of the patient. Knowledge that often develops overtime through trust. Patients want and need to be able to trust their doctors. Sometimes patients share information with
Today’s case is about the clash between these two basic rules. Before we get to the rules, we look at how we get there. A standard defense discovery request in any personal injury litigation is: how much are your medical bills? This is routinely followed by: do you have any medical liens, and if so
Like most of you, and like our co-bloggers (from whom you will hear similar laments this week) we are in the midst of “social distancing.” We have locked down our home, begun an indefinite period of working remotely, ordered a case of boxed macaroni and cheese, and fielded emails cancelling an inordinate number of long-awaited
Personal jurisdiction being a key issue for us here at DDL Blog, we’ve talked a lot about the “minimum contacts” needed to establish jurisdiction over an out-of-state defendant. Not many cases, however, analyze the two specific jurisdictional tests for minimum contacts. That’s likely because in most cases, it doesn’t make a difference whether you use
This post is from the non-Reed Smith side of the blog.
In our post earlier this week “No Causation, No ‘Parallel Claim’” we examined the enormous causation hurdle plaintiffs face in trying to prove a Stengel or Hughes type failure to warn claim in those jurisdictions where such a claim has been found
Back in October, all of the Philadelphia Reed Smith bloggers participated in an in-house CLE presentation attended by colleagues and clients. Our portion of the presentation dealt with third party litigation funding. There are several different funding models, but all are united by a common theme: funding companies, aided by plaintiffs’ lawyers, identify vulnerable litigants
We think Lone Pine orders are fair and useful tools, and we believe that courts should use them more often, not less. We learned last week that the Colorado Supreme Court disagrees, at least when reviewing the particular order that was presented in Antero Resources Corp. v. Strudley, No. 13SC576, 2015 WL 1813000 (Colo. Apr. 20, 2015). We will get to the Colorado opinion in a minute, but first, what is a Lone Pine order? We would forgive you for asking because the first time we heard the term sometime in the late 1990s, we thought it was a reference to the 1985 blockbuster Back to the Future (fans of Michael J. Fox will immediately understand why).
Alas, Lone Pine refers neither to a time machine nor to a single evergreen standing in a suburban mall parking lot. A Lone Pine order is an order under which the plaintiff in a personal injury lawsuit has to come forward with evidence of a prima facie case, or at least part of a prima facie case, before he or she can proceed further. Such orders are named for a 1986 New Jersey case, Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super. Nov. 18, 1986), which is most often cited as the progenitor of the species. The idea is that a plaintiff can plead anything, in whatever form, and while TwIqbal brought on a welcome reboot of pleading standards in federal court, we have seen how creative pleading can get cases into discovery even when the claims have no arguable merit.
The rubber hits the road when the plaintiff has to produce evidence sufficient to support his or her claims, and that is where Lone Pine orders come in. They come in various forms, but Lone Pine orders most often require that the plaintiff submit proof of product use or exposure and a certification from a medical expert stating that the use or exposure caused the plaintiff’s injury. Doesn’t sound too onerous, does it? This is the kind of information that plaintiffs should have marshaled even before filing a lawsuit, and many plaintiffs’ attorneys undertake this due diligence before filing, maybe even most. Many do not. In today’s environment of “mass tort” litigation, some attorneys see value in building inventories of filed cases without regard to the merits of the claims, and when that happens, a Lone Pine order can be the way out. Take for example a large group of cases in which taking the plaintiffs’ and prescribing physicians’ depositions resulted in the voluntary dismissal of 25 percent of the cases (this is not a hypothetical). An order requiring plaintiffs to produce expert opinion on medical causation before discovery may have been useful. Because they’re a valuable defense tool, we keep a cheat sheet here of successfully-obtained Lone Pine orders.
Continue Reading Lone Pine Order Reversed: Rocky Mountain Low
A federal court recently placed Colorado amongst the states that apply Restatement (Third) of Torts §6(c) in design defect cases. That’s a good place to be when you’re defending a medical device company. Section 6(c) creates a tougher burden for design defect plaintiffs than does Restatement (Second) of Torts. Showing a safer alternative design isn’t enough. And that’s important, because there are often alternative designs for medical devices. Section §6(c) instead focuses on prescribing doctors and their risk-benefit analysis:
A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by the drug or medical device are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health-care providers, knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug or medical device for any class of patients.
Restatement (Third) of Torts § 6(c). In short, if a reasonable doctor would choose to use the device for any class of patients, knowing the risks, it is not defectively designed – regardless of whether there might be an alternative design.
The facts of the Colorado case, Haffner v. Stryker Corp., No 2014 U.S. Dist. LEXIS 137214 (D. Col. Sep. 29, 2014), show how this can work. The plaintiff had knee replacement surgery, but later needed revision surgery. He was allergic to the cobalt and nickel contained in the knee replacement system. So he sued, claiming, amongst other things, that the system was defectively designed. Id. at *1, 2, 7.
Continue Reading A Colorado Federal Court Adopts Restatement (Third) of Torts Section 6(c)
Once a mass tort becomes widely publicized, sometimes based on a combination of a bad study, a verdict or two for plaintiffs, internet sites, and late night television ads, lots of plaintiffs come out of the woodwork, including plaintiffs with weak, late, or marginal claims. Those plaintiffs and the clever lawyers who assist them believe