We haven’t see too many of these. The reason for that is the gadolinium litigation is practically a textbook example of where federal law ought to preempt state-law product liability claims of all kinds—including both design defect claims and failure-to-warn claims. Just search gadolinium on the blog and you’ll find plenty of cases dismissed on
Guest Post – E-Gads, Once Again Preemption Prevails In Gadolinium Contrast Litigation
Here’s another guest post by Reed Smith’s Dean Balaes. This one looks into a major (but not too recent) post-Albrecht drug preemption case. Can’t have too many of those! As always, our guest posters deserve all the credit (and any blame) for their writings.
There is no hiding the fact that federal…
Not Every Label Change is a CBE Label Change
This has been an important concept in the gadolinium litigation and it delivered another preemption win in Javens v. GE Healthcare Inc., 2020 WL 2783581 (D. Del. May 29, 2020). The changes being effected (“CBE”) label change process has strict limitations on when it can be used to add or amend warnings without prior…
A Gadolinium Sequel
Almost two months ago we posted on the magistrate’s Report and Recommendation in Drescher v. Bracco Diagnostics Inc., 2020 WL 699878 (D. Ariz. Jan. 31, 2020). Back when our co-workers didn’t include furry, four-legged friends. When we weren’t also re-learning high school geometry. And when pajamas and slippers weren’t acceptable work attire. Many things…
Never Too Much of A Good Thing
Well, at least that’s true when we are blogging about defense wins. And this week, we have another good gadolinium case. This time from New York.
Just a quick reminder – gadolinium is a contrast agent that is injected into a patient before undergoing an MRI. The gadolinium is intended to pass through the body,…
Another Gadolinium Win for Defendants
We’ve brought you some great news from the gadolinium contrast agent litigation last year and the hits just keeping on coming. This time out of federal court in Arizona. And while the court is giving plaintiff another stab at re-pleading her case, we are doubtful plaintiff will be able to cure the deficiencies identified in…
J.P.M.L. Denies Request for New Gadolinium MDL
J.P.M.L. Denies Request for New Gadolinium MDL
“Eventually, all things merge into one, and a river runs through it. The river was cut by the world’s great flood and runs over rocks from the basement of time. On some of the rocks are timeless raindrops. Under the rocks are the words, and some of the…
Quirky Facts About Tennessee and Choice of Law
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
- 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
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Gadolinium and Spherical Error
Fritz Zwicky, the tart-tongued scientist (discoverer of, among other things, supernovae and neutron stars) was wont to label his critics in the astrophysical world (of whom there were many) “spherical bastards.” That was his shorthand for someone who was a “bastard, when looked at from any side.”
Hence the title of this post. We think that the recent decision in In re Gadolinium-Based Contrast Agents Products Liability Litigation, MDL No. 1909, slip op. (N.D. Ohio May 4, 2010), is a spherical error. That is, it’s a decision that, no matter what direction we look at it, looks like error to us.
This goes beyond mere legal analysis, and encompasses a truly troubling disparity in the approach to defense and plaintiffs’ experts. Leaving astrophysics for something less cosmic (but more interesting to us baseball fans) the plaintiffs’ experts got to pitch to a Kong Kingman strike zone. E.g., Slip op. at 39-40. But when defense experts had to toe the same rubber, well it was Eddie Gaedel at the plate. E.g., Id. at 52-53.
Read on, you’ll see what we mean.
That’s odd, because we looked at Judge Polster’s opinions to check his history was in product liability cases. We found nothing unusual in any past opinions. While Judge Polster doesn’t much like fraudulent misjoinder, he’s hardly alone in that. He doesn’t have a long product liability track record, but he seemed okay in asbestos cases.
So we’re still scratching our heads at where this spherical error comes from.
We knew practically nothing about the Gadolinium MDL before the other day. It had produced no opinions beside a few removal/remand decisions. Gadolinium itself is a “rare earth,” one of those oddballs that hang underneath the main periodic table, as Bexis found out about when his daughter told him she knew all the elements’ numbers by heart (it’s number 64, and, yes, she did know it). Apparently, gadolinium’s magnetic properties make it a superior contrast agent when used in now ubiquitous resonance scans.
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