Colorado

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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

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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…

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Stop us if you’ve heard this one before. Actually, you certainly have. Just like we keep telling the same stories to our kids and colleagues, we find ourselves on this blog yapping incessantly about preemption, Twombly and causation. That’s no huge surprise, because those are three of the best sieves for filtering out weak drug-and-device…

Drug & Device Resources

Bexis’ Book

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.
Learn more about this book