Last week we settled a case. It was a good settlement. But we groused about it a bit, because we thought the judge should have granted us summary judgment on preemption grounds. The denial of summary judgment was truly “summary.” There was no written opinion at all, and the judge’s few statements at the hearing

We were dealing recently with a case from Louisiana and we found ourselves once again confronted with that peculiar cause of action, “redhibition.”  A redhibition claim is something like an implied warranty claim, see Gomez v. St. Jude Medical Daig Division Inc., 442 F.3d 919, 931 (5th Cir. 2006) (describing redhibition as “Louisiana’s equivalent to a breach of implied warranty”), and a little like a consumer fraud action, but not really either.  It’s neither fish nor fowl. Hence our reaction when, over a decade ago we first encountered this type of claim – whiskey tango foxtrot?

Redhibition is a Louisiana peculiarity (like the Napoleonic Code, elections that ignore political parties, and parasol twirling football fans shouting “who dat?“), and the folks way down yonder liked it enough that they excepted redhibition from the Louisiana Product Liability Act, which subsumes just about every other product liability cause of action known to man (and some – “unreasonably dangerous per se” – that aren’t).  See La. Rev. Stat. §9:2800.53(5) (defining “damage” to include economic loss except for amounts recoverable as “redhibition”); Aucoin v. Southern Quality Homes, LLC, 984 So.2d 685, 691 n.8 (La. 2008) (redhibition survives LPLA).  However, redhibition survives only as to economic losses in products cases.  Pipitone v. Biomatrix, Inc., 288 F.3d 239, 251 (5th Cir. 2002) (LPLA “preserve[es] redhibition as a cause of action only to the extent the claimant seeks to recover the value of the product or other economic loss”) (applying Louisiana law); Nelson v. Mylan Pharmaceuticals, Inc., 2010 WL 3339274, at *3 (W.D. La. Aug. 3, 2010) (same).

Redhibition is one of those claims that’s often pleaded (at least in Louisiana) but rarely pursued or proven in prescription medical product cases.  But every so often, one must vote for the crook, it’s important.


Continue Reading Ready for Redhibition

First the Digitek MDL gave us a new weapon – the “Digitek Order” – to ensure plaintiffs’ counsel comply with their Rule 11 obligations to actually investigate their clients’ claims before filing thousands of cases. Novel concept, right? And now we have another helpful opinion – a new decision out of the MDL

We’ve figured out how to settle a pending case!

And we’ll share our solution at the end of this post!

Read on for the details.

In Hunt v. DePuy Orthopaedics, No. 03-900 (RWR), 2009 U.S. Dist. LEXIS 61644 (D.D.C. July 20, 2009), Martha Hunt, a citizen of Maryland, underwent hip replacement surgery with a DePuy

The fascinating, and ultimately frustrating, pair of decisions in Guinan v. A.I. duPont Hospital for Children, ___ F. Supp.2d ___, 2009 WL 307019 (E.D. Pa. Feb. 6, 2009) (“Guinan I“), and Guinan v. A.I. Dupont Hospital for Children, ___ F. Supp.2d ___, 2009 WL 311113 (E.D. Pa. Feb. 6, 2009) (“

We really don’t see the purpose in a separate cause of action for breach of implied warranty in a case involving a prescription medical product. Warranty claims are for ham sandwiches and lawn chairs, where the term “merchantable” has some coherent meaning. Prescription medical products are just that – available only by a physician’s prescription.