It’s time for the Mesh Case of the Week. In Dupere v. Ethicon, Inc., 2022 WL 523604 (S.D.N.Y. Feb. 22, 2022), the plaintiff filed a lawsuit claiming injuries from pelvic mesh that had been implanted in her to treat stress urinary incontinence. The court ended up dismissing many of the causes of action. That
Duty To Test
Delaware Court Weighs In On Texas Law And Dismissal Ensues
Delaware is having something of a moment in the sun. Although the state’s license plates have long announced it as “The First State,” that refers to being the first to ratify the U.S. Constitution. It is the second smallest in size and sixth smallest in population of the current fifty states. The casual peruser of…
Zantac Chronicles II – The Prevalence of Preemption
Another of the recent significant decisions from the In re Zantac MDL, No. 2924, addressed preemption – mostly but not entirely involving defendants who manufactured generic versions of the drug. In re Zantac (Ranitidine) Products Liability Litigation, ___ F. Supp.3d ___, 2020 WL 7864213 (S.D. Fla. Dec. 31, 2020). For those who have not…
Atkinson v. Luitpold – Part III
When we last left our story, plaintiffs had lost their fight to have Pennsylvania law apply to residents of Texas ( Atkinson I) and lost a chunk of their claims as barred by the Texas statute prohibiting failure to warn claims where a drug’s label has been approved by FDA and comment k (…
New York Chantix Case: Great on Preemption, Not So Hot on “Failure to Test.”
Recently, largely related to the dubious pleasure of home ownership, we have had multiple occasions on which we were forced to shrug our shoulders and proclaim, “Nothing’s perfect.” To wit, we recently noticed a small wet spot on our bedroom ceiling. The roofing company discovered that the corresponding section of the roof was too shallow…
Guest Post – The Wild West of MDL: Off-Label Promotion, Negligent Testing, & Gross Negligence Claims Survive in Farxiga
This guest post is by Reed Smith associate Lora Spencer, who (as you might suspect) calls Texas her home. In her first rodeo on the blog, she discusses a recent MDL decision that she thinks is a few pickles short of a barrel, and hopes it’s not a harbinger of things to come. Not…
Pennsylvania Sound Bites
In searching for cases for this blog, we sometimes feel like its Groundhog Day. Another preemption win in a PMA medical device case. Another food labeling decision from California. Another failure to plead fraud with particularity dismissal. Another “Okay, campers, rise and shine, and don’t forget your booties ’cause it’s cooooold out there today.” Well, that last one really only applies to Phil Connors, but you get the idea.
Faced with routine rulings, it can be difficult to be creative, to find the new hook or twist. So, sometimes the answer is simply to not – be creative that is. Sometimes, a decision is just what it looks like it is on its face. Another good ruling in an already good body of law. But that doesn’t mean it should be disregarded either. We just need to pluck out the good sound bites and add them to top of the pile.
For instance, if faced with a claim for negligent failure to test in Pennsylvania, you can now add Houtz v. Encore Medical Corp., 2014 U.S. Dist. LEXIS 170481 (M.D. Pa. Dec. 10, 2014) to your motion to dismiss on the ground that “Pennsylvania courts have explicitly stated that negligent failure to test is not a viable cause of action.” Id. at *7.…
A Short, Sweet Decision on a Cold, Blustery Day
Back in September we gave you the end of the year holiday season countdown. With Halloween behind us, we are down to Hanukkah (15 days away (Mensch on a Bench is already sold out for 2013)), Thanksgiving (16 days away) and Christmas (42 days to go). If someone would make a scarecrow holding a
On The Ball In The Old Dominion
There are several reasons we recommend taking a look at last week’s decision in Ball v. Takeda Pharmaceuticals America, Inc., 2013 WL 4040395 (E.D. Va. Aug. 8, 2013). One is that the case involves Stevens Johnson Syndrome, a rare but devastating idiosyncratic reaction which has become something of a litigation flavor du jour, with plaintiffs claiming that a great number of drugs cause this condition. After showing considerable patience (plaintiff filed 5 motions to amend), the court ruled that plaintiff finally struck out.
Most significantly, Ball was super in dismissing the plaintiff’s warning claim. The court held that the defendant’s warning about SJS/TENS was adequate as a matter of law – and dismissed the case:
The [relevant] label clearly identifies Stevens-Johnsons syndrome as a potential “adverse reaction” that could result from use of the prescription drug. Under Virginia law, a manufacturer is obligated to give a reasonable warning, not the best possible one. Courts have routinely held warnings adequate as a matter of law when they alert a party to the very injury for which the plaintiff seeks relief. [Defendant] disclosed Stevens-Johnson syndrome as a possible adverse reaction to [the drug] prior to plaintiff’s ingesting the drug. . . . The failure to disclose this risk is the sine qua non of the plaintiff’s negligence and negligence per se claims to the extent they seek to hold [defendant] responsible for plaintiff’s Stevens-Johnson syndrome. Those claims are dismissed, with prejudice.
Ball, 2013 WL 4040395, at *5 (citations omitted). A finding of adequacy as a matter of law is powerful, since warning claims are at the heart of prescription drug litigation. That this determination was made at the motion to dismiss stage, with the court taking notice of the label, is obviously even better. “A manufacturer does not insure its product’s safety, and need not supply an accident-proof product,” Id. at *6 (citation and quotation marks omitted).…
No Duty to Test Claim Doesn’t Keep Out Failure to Test Evidence Entirely
Because of Reed Smith’s involvement in this litigation, this post is from the Dechert side of the blog only.
We love to bring you the slam dunks, the grand slams, the holes in one – well, at least the ones that go in defendants’ favor. And, while we dislike having to deal with the air balls, the strike outs, and the shanks into the rough, we do it. Usually with less gusto but then we’ve always been honest that this is a defense oriented blog. We examine the rulings that go against us to be forewarned, to develop new strategy, and we hope in some small way to contribute to changing the law. But, as practitioners we know that more often the course of a lawsuit is filled with small victories and minor defeats as the game inches toward completion – whether trial, settlement or dismissal.
That brings us to today’s case – mostly sweet, with a hint of a sour after taste. Cisson v. C.R. Bard, Inc., 2013 WL 3821280 (S.D. W. Va. Jul. 23, 2013) is another decision out of the Pelvic Mesh MDL and it applies Georgia law. The decision is actually clarifying the court’s earlier evidentiary ruling regarding evidence of defendant’s alleged failure to test.
First, the court makes clear that under Georgia law, there is no separate cause of action for failure to test. Id. at *4 (“there is no claim for failure to test under Georgia law”). That’s no shocker; the list of courts reaching the same conclusion is quite lengthy. But this wasn’t a motion to dismiss, rather a motion in limine. And, because the “duty to test is subsumed within the plaintiffs’ design defect and failure to warn claims,” id. at *5, the court was called upon to determine what testing evidence would be admissible at trial.…
Continue Reading No Duty to Test Claim Doesn’t Keep Out Failure to Test Evidence Entirely