This post is from the non-Reed Smith side of the blog.

As we pointed out earlier this week, we are typically more interested in defense victories on this blog.  But every once and a while, we find cases that go the other way that we believe merit a mention. Sometimes that is because the decision is too significant to ignore.

Sometimes it is because of the court that renders the decision. Sometimes – like yesterday and today – it is because we want to remind our readers of issues that while not common, are nonetheless real.  Unfortunate issues that crop up from time to time. Yesterday, that was about a loss on fraudulent joinder involving claims against a sales representative.  As we mentioned then, more often than not – defendants win that issue.

Today’s case continues the sales representative theme.  A couple of years ago, we posted a cumulative piece on cases dealing with sales representatives who are present in the operating room.  It isn’t something that we come across very often and from our review, the decisions are split (largely based on the particular facts) as to whether the actions of a sales representative create a cause of action against the device manufacturer.  The issue, boiled down to basics, is whether the sales rep got too involved in the actual treatment of the patient or use of equipment during surgery. It was on that basis that the plaintiff in Medtronic, Inc. v. Malander, 2013 Ind. App. LEXIS 499 (Ind. Ct. App. Oct. 11, 2013) brought a negligence claim against the manufacturer of her husband’s defibrillator.  The defibrillator, a Class III PMA medical device, was implanted in 1997 and upgraded in 2004.  In 2006, plaintiff’s husband began experiencing a problem with the device known as V-V intervals.  Id. at *3.

During another upgrade surgery, one of defendant’s “clinical specialists” was present to assist with testing the device.  The test revealed no problems.  During the procedure, plaintiff’s surgeon also called defendant’s “technical services department” requesting information on V-V intervals and lead failures.  Id. at *4.  Defendant’s technicians responded: “Don’t worry about that; it doesn’t mean anything . . . I don’t think that’s a problem . . .”  Id. The surgeon did not replace the device. Plaintiff’s husband died a month later, following more episodes of V-V intervals. Plaintiff’s claims against the defendant included design defect, failure to warn, failure to recall, and failure to recommend removal during the 2006 surgery.  Id. at *5.


Continue Reading Another Sales Representative Cautionary Tale

The Indiana Court of Appeals recently issued an opinion applying the section of Indiana’s Product Liability Act (IPLA) that, under certain circumstances, creates a rebuttable presumption against a finding of defect or negligence in product liability actions.  See Gresser v. Dow Chem. Co., 2013 Ind. App. LEXIS 204 (Ind. Ct. App. Apr. 30, 2013). 

We see so many cases alleging “illegal” promotion of off-label use that when we find one where the plaintiffs don’t make that sort of allegation, it makes us sit up and take notice. That’s the case with Meharg v. I-Flow Corp., No. 1:08-cv-184-WTL-TAB, slip op. (S.D. Ind. March 1, 2010). It’s a pain pump case – the allegations being that these pumps, which are used after shoulder surgery, continuously “infused” various types of anesthetics intended to (evidently successfully) reduce post surgical pain, but that the continuous exposure (or anything else a creative expert might come up with to blame on defendants) caused long-term deterioration (“chondrolysis”) of shoulder cartilage.

The pumps (which are FDA approved) are machines, and of course machines don’t care what you put in them – they’ll infuse it. Thus, the most interesting aspect of pain pump cases we’d seen prior to Meharg had to do with product identification. That is, plaintiffs have been trying to sue various drug companies without even being able to allege the the defendant’s drug was actually used. That’s a no-no, and it’s produced some favorable decisions reaffirming the rule that a plaintiff can only sue the manufacturer of a product s/he actually used. Timmons v. Linvatec Corp., ___ F.R.D. ___, 2010 WL 476661, at *3-4 (C.D. Cal. Feb. 9, 2010); Haskins v. Zimmer Holdings Inc., 2010 WL 342552, at *2 (D. Vt. Jan. 29, 2010); Gilmore v. DJO Inc., 663 F. Supp.2d 856, 860-61 (D. Ariz. 2009); Combs v. Stryker Corp., 2009 WL 4929110, at *2-3 (E.D. Cal. Dec. 14, 2009); Dittman v. DJO, LLC, 2009 WL 3246128, at *3 (D. Colo. Oct. 5, 2009); Sherman v. Stryker Corp., 2009 WL 2241664 at *5 (C.D. Cal. March 30, 2009). These pain pump cases are yet another reason why we like Twombly/Iqbal.

We expect that the pain pump litigation will continue producing decisions on weird points, because the plaintiffs will be suing the wrong defendants, the manufacturers of the drugs used in the pumps, over injuries that were caused, not so much by the drugs, but by how the drugs were continuously infused by the pumps – if there’s any causation at all, that is. In fact, we can almost guarantee it.


Continue Reading On State Of The Art And Preemption

We’ve decided to blog on a less depressing preemption subject than Wyeth v. Levine today. We’ve seen a couple of recent medical device preemption cases that just about bookend the field. In Hofts v. Howmedica Osteonics Corp., 2009 WL 331470 (S.D. Ind. Jan. 12, 2009), the court found just about as little preemption (and

When we finished reading the majority opinion in Kovach v. Alpharma, Inc., No. 49A04-0707-CV-406, 2008 WL 2746509 (Ind. App. July 16, 2008), we were thinking of publishing a post titled: “Hire Us, Alpharma!”

The Kovach majority decision entirely overlooked what seemed to be the dispositive issue in the case, so we figured that defense