Diversity jurisdiction has been on our minds a lot lately. Last week, we wrote about a plaintiff who unsuccessfully tried to steer under the $75,000 amount in controversy requirement. As John Adams said, “facts are stubborn things,” and the existence of medical bills in excess of $75,000 refuted the plaintiff’s remand motion and permitted the
This post is from the non-Reed Smith side of the blog.
It may be post Mardi Gras season, but we don’t think there is ever a bad time to embrace the motto – “Laissez les bons temps rouler.” Quite literally – “Let the good times roll.” However, don’t try this with your high school French
This post is from the non-Reed Smith side of the blog.
Search for Medtronic on this blog and you’re going to find preemption cases. Lots of preemption cases. Mostly preemption victories for the defense. An overwhelming body of preemption law has been made by Medtronic. They’ve certainly led the charge. So, if we say today’s
As our post-Levine preemption cheat sheet demonstrates, Mensing/Bartlett preemption is breathing down the necks of all prescription drug design defect claims. Recent cases finding preemption of design defect claims due to the need for FDA pre-approval of “major” or “moderate” design changes (basically, anything that could be causal in a product liability
The Louisiana Product Liability Act (“LPLA”) was enacted way back in 1988 – almost 30 years ago – to rein in the Louisiana courts’ product liability insanity (inanity?) epitomized by Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La. 1986), which had allowed strict liability without defect under something called “unreasonably dangerous per se.”
The last time we wrote about Flagg v. Stryker Corp., we thought it would be the last time we’d write about Flagg v. Stryker Corp. Pain and frustrated resignation oozed from Bexis’s keyboard as he wrote that a Fifth Circuit panel had ordered remand of the removed complaint, even though defendants had a solid basis for removal. Along with the manufacturers of the toe implant device that was the subject of the complaint, the Louisiana plaintiff had also sued his doctors for malpractice, and his doctors were also from Louisiana. The purpose, at least in part, seemed clear: to defeat diversity and keep the complaint in state court. But Louisiana law requires plaintiffs to exhaust the administrative procedures set out in the Louisiana Medical Malpractice Act (“LMMA”) before suing their doctors in court. And the plaintiff (admittedly) had not done so. So the non-diverse doctors were not proper defendants, and removal on the basis of diversity seemed appropriate. In fact, plaintiff never moved to remand, instead requesting a stay while he tried to complete the LMMA’s administrative procedures, a request that the district court denied.
On appeal, however, the Fifth Circuit panel addressed diversity jurisdiction sua sponte and held that it didn’t exist. As we discussed in our last post on this case, the panel noted that the LMMA had procedural “outs,” its administrative process wasn’t always a prerequisite to filing suit, and that it was reasonable to conclude that plaintiff could still win its medical malpractice claims even though they may have been filed early. With that, and little more, the Fifth Circuit ordered remand. As we mentioned, we thought that was the end of it.
We were wrong.
The Twombly and Iqbal requirement that complaints set forth facts making out a plausible case for liability got a nice workout in the recent case of Guidry v. Janssen Pharmaceuticals, Inc., 2016 WL 633673 (E.D. Louisiana Feb. 17, 2016). The plaintiff alleged that she suffered acute kidney failure after using a prescription drug. The Complaint began with three causes of action under the Louisiana Products Liability Act (LPLA) for “composition or construction” defect, design defect, and failure to warn. There were other causes of action, including negligence, strict product liability, negligent misrepresentation, fraud/deceit, violations of Louisiana Unfair Trade Practices, breach of express warranty, and breach of implied warranties. And, just as you will invariably find red beans on your plate in many Louisiana parishes, so you will find a “redhibition” claim in a drug/device lawsuit.
The defendant filed a motion to dismiss. Because the LPLA provides “the exclusive theories of liability for manufacturers for damage caused by their products,” (La. R.S. §9.2800.52) most of the causes of action in the Complaint were invalid. The plaintiff attempted to save “her extraneous theories of recovery with an appeal to New Jersey law.” Her theory was that because the defendant’s home state was New Jersey, the laws of New Jersey must apply to her claims. But the plaintiff was a resident of Louisiana. Consequently (though not specified in the complaint, either through carelessness or shrewdness), the prescription drug was probably acquired in Louisiana and the alleged injury was sustained in Louisiana. Under those circumstances, the law of Louisiana, not New Jersey, would govern the liability claims. Bruce Springsteen must yield to Fats Domino. Therefore, the court dismissed the claims for negligence , strict product liability, negligent misrepresentation, fraud and deceit, violations of Louisiana Unfair Trade Practices, and beach of implied warranty. Adieu, non-LPLA claims. (At this point, we hope we do not seem churlish by wondering whether Rule 11 should not smack down common law product liability claims in Louisiana. The LPLA has been in force for over 25 years and its exclusivity is both express and well-settled. And yet, plaintiffs continue to file frivolous common law claims. OMD! – i.e., Oh mon Dieu.)
This post is from the non-Reed Smith side of the blog.
We do have two opinions to talk about, they’re just from the same case. They are the magistrate’s Report and Recommendation and the district court’s subsequent ruling in Lyles v. Medtronic, Inc. This is the latest Infuse victory but it’s not all about preemption this time. There’s a little statute of limitations, a little statutory exclusivity, some judicial notice, and of course a bit of preemption. We’ll break it down for you.
Plaintiff underwent spinal surgery on May 10, 2013. On February 6, 2014 he began to suffer from complications that necessitated a revision surgery. Plaintiff alleges that on February 13, 2014 he was told by his doctor that the plate used in his surgery had failed. Lyles, 2015 U.S. Dist. LEXIS 175042 at *1-4 (W.D. La. Nov. 23, 2015) (Report and Recommendation (“R&R”). Then plaintiff started filing complaints. He first filed on February 10, 2015 alleging products liability claims against Medtronic, Inc. He amended his complaint with additional knowledge gained on May 8, 2015. He filed a second amended complaint substituting Medtronic Sofamor Danek USA, Inc. for Medtronic, Inc. on June 11, 2015. At this point, Medtronic, Inc. is no longer a defendant. Id. at *4. Plaintiff still wasn’t done. He filed a third amended complaint on July 17, 2015 asserting claims for fraud and violation of the Louisiana Unfair Trade Practices Act against both Medtronic Sofamor Danek USA, Inc. and Medtronic, Inc. Id. at *5. That’s four complaints and none of them were sufficient to survive a motion to dismiss.
As to Medtronic, Inc. plaintiff’s claims were time-barred. The allegations in the third amended complaint didn’t related back to the original filing. Medtronic, Inc. may not have been an entirely new party, but the allegations against it are. Fraud and consumer protection violations were not alleged in the original complaint – “they do not arise out of the same occurrence previously set forth as those were all products liability claims and cannot relate back.” Id. at *7. Plaintiffs also argued that the Medtronic defendants were solidary obligors and therefore the statute of limitations was stayed from the original filing date. But without an allegation of conspiracy, this argument was without merit. Id. at *6-7.
Back in September, we reported on Flagg v. Stryker Corp., 801 F.3d 456 (5th Cir. 2015), which reversed a nearly ten-year trend in Louisiana product liability litigation recognizing diversity jurisdiction where plaintiffs improperly sued in-state medical malpractice defendants in violation of Louisiana’s medical review board pre-submission requirement.
Literally hundreds of cases have been removed
Well, that appears finally to be over, and like the “ships” (relationships) at the end of the Harry Potter series, we’re not particularly happy with the end result – as compatible as ashwinder eggs and erumpent horn, those two would be, and we’re not alone in thinking that.