Louisiana

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Today is the day when we will learn whether the Governor of Louisiana will enter the 2016 presidential race.  That reminds us of Louisiana’s rather colorful collection of politicians, including Huey Long and Edwin Edwards. You probably already know that Louisiana boasts an unrivaled array of colorful characters in every field of endeavor, from chefs (Emeril Lagasse, Paul Prudhomme), sports (Peyton Manning, Pistol Pete Maravich),  music (Louis Armstrong, Dr. John – and about a million others), and philosophy (Huey Newton, Uncle Si).  Louisiana has added its own spicy flavor to the law, as well.  If you asked drug and device defense lawyers who is the single most flamboyant, unpredictable plaintiff lawyer in the land, we bet a certain lawyer from Louisiana would garner the most votes.  Pelican State courts have also given us some of the highest highs and lowest lows in product liability litigation.

Examples of both such highs and such lows reside in the recent case of Ezeb v. Sandoz Pharmaceuticals, No. 2015-C-0204 (Ct. App, 4th Cir. La June 17, 2015).  What we have in the Ezeb case is one of the very worst summary judgment rulings by a court we have ever seen, ultimately reversed by an eminently sensible appellate court decision.  Usually when we talk about a bad summary judgment decision, we are bemoaning a court’s failure to grant some virtuous defendant a ruling that dismisses some ill-conceived case.  But in Ezeb the trial court granted partial summary judgment to a plaintiff on grounds so wrong-headed as to beggar belief.

While we supply the requisite procedural background, you might want to supply appropriate background music by a Louisiana legend – perhaps the smooth stylings of Harry Connick, Jr., Geno Delafose, or Lil Wayne.  In or about 1990, the plaintiff filed a lawsuit against numerous doctors, hospitals, and pharmaceutical companies claiming that they played a role in overdosing him with a drug and thereby causing him various injuries.  He sued the medical professionals for negligence, and sued the drug manufacturer under the Louisiana Products Liability Act (LPLA) for failing to warn of the side effects of the medication.  One of the defendants was Caremark, the company that employed a treating nurse at the medical center where the plaintiff was administered the medicine. The plaintiff had alleged that the nurse played some role in the overdose.  In 2008 (so now we are 18 years after the case was initiated), Caremark filed a motion for summary judgment.  Reading between the lines of the decision, it appears that Caremark argued that there was no evidence establishing that its nurse was responsible for the dosing decision.  Caremark’s summary judgment motion was unopposed, and the court, not surprisingly, granted the motion.   All of the plaintiff’s claims against Caremark were dismissed with prejudice.Continue Reading Louisiana Appellate Court Overturns Improper Application of “Law of the Case” Doctrine

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San Francisco has become a sea of orange and black.  As we post this missive, hundreds of thousands of Giants fans are flooding into the city for the third World Series parade in five years.  The 2010 parade was unlike anything we have ever seen in terms of size and ebullience.  Truth be told, we are Oakland Athletics fans, so while we are delighted at the triumph of the men in orange and black, our delight pales by comparison to the euphoria that would accompany another World Series title for the green and gold.  We attended the 2010 Giants parade therefore not because we are avid fans, but because the parade route runs one block north of our office and because we were firm in our belief that the Giants would never win another World Series for as long as we live.  Boy, were we wrong on that one!

Of course, it is also Halloween, the other reason why orange and black is San Francisco’s color scheme du jour.  We are unsure of the origins of Halloween and its signature colors, although we are very sure that the Giants’ victory had nothing to do with All Hallows’ Eve, Celtic harvest festivals, or superstition.  Indeed, we are confident that the confluence of orange and black celebration on this one day is a coincidence, albeit one accompanied by ghouls, goblins, costumes of all sorts, children begging for candy, and skeletons displayed in front of our homes.

Which brings us to the topic of bones, the subject of an interesting case from the Western District of Louisiana holding that a medical device is not defectively constructed just because it broke.  In Lirette v. DePuy Mitek, LLC, No. 2:13-cv-2892, 2014 U.S. Dist. LEXIS 149725 (W.D. La. Oct. 20, 2014), the plaintiff injured her knee while jumping rope and underwent ACL reconstruction with a prosthetic graft in her shin bone.  The graft product, however, allegedly “split open” in the plaintiff’s knee, resulting in multiple additional surgeries to relieve her pain and to remove “pieces of loose matter” that appeared to be pieces of the “split” device.  Id. at **2-3.

The plaintiff sued the product manufacturer under the Louisiana Products Liability Act (“LPLA”), a law that we like, mainly because of its strong exclusivity (and alternative design) provisions.  If you want to file a products liability claim in Louisiana, you get a claim for defect in design, defect in construction, inadequate warnings, or breach of express warranty – and that’s all.  Id. at *7.  The plaintiffs initially pleaded all four theories, but on the third round of pleading (much more common after TwIqbal), they were left with just one products liability claim for allegedly defective construction.  Id. at **8-9.Continue Reading Halloween and Broken Devices Don’t Make a Defect

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Those of  us whose childhood had low tech play options and at least a touch of OCD recall  playing with dominoes.  Not whatever the game is where the number of dots on a tile matters, which we understand exists from witnessing it in screen classics like “Boyz n the Hood.”  No, we mean the activity where you line up a series of dominoes in a sequence where tipping over the first one will cause a chain reaction where many or all fall over.  If you were really motivated or bored, then the arrangement of dominoes might have included the construction of elaborate stairs, towers, or catapults or tiles falling off of tables to start new chains.  There is probably some app for this now.

The decision in Grabowski v. Smith & Nephew, Inc., No. 14-433, 2014 La. App. LEXIS 2367 (La. Ct. App. Oct. 1, 2014), reminds us of dominoes.  (We do try to have our non-legal introductions have something to do with our purported point.)  The case was really a detour from what looked like a medical malpractice action against a surgeon who performed a knee replacement with an insert that was too small for the tray he used.  The details of the two part implant system are not terribly important here, but the sizing of the insert and tray should match up.  The surgeon blamed the sizing error on the sales rep present at the implant after learning about it from another rep at a revision surgery three months later.  Skipping over some procedural parts and a whole section of the decision about a motion to recuse the judge—arrangements of dominoes sometimes have dead ends on purpose—plaintiff sued the original rep, the distributor with whom he had a contract at the time of the implant surgery, and the manufacturer of the implant with whom he used to have a contract.  The defendants eventually moved for and were granted summary judgment.

The basic idea was the rep was not liable for negligence because the duty of providing medical care to the patient—including using the right size of any medical device—rested solely with the surgeon.  In addition, the distributor was not liable for acts or omissions of someone who was its independent contractor and the manufacturer was not liable for someone with whom it had no direct contractual relationship.  On appeal, all the tiles fell to bring the deep pockets back into the case.  (We cannot tell what happened in terms of litigation between the plaintiff and the surgeon.)Continue Reading Louisiana Liability For A Sales Representative’s Sizing Error

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Things are often done differently down in Louisiana.  For one thing, Louisiana is the nation’s only civil law state.  It’s also the only state not to have enacted the Uniform Commercial Code.  We blogged about one such difference before – the state’s unique claim for “redhibition.”  Today we’re examining another Louisiana legal peculiarity.  This peculiarity…

Photo of Stephen McConnell

We just emerged from a deposition of a plaintiff that was worse than the usual festival of prevarication, evasion, and obfuscation.  You are catching us at a moment when our cynicism has plummeted to new depths.  Sometimes it seems that some plaintiff lawyers will school their clients into spouting any nonsense necessary to keep a…

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Happy Birthday LEXIS/NEXIS, whose legal research service went up on this date back in 1973.  There’s no doubt that LEXIS/NEXIS has made our professional lives considerably easier.  We’ve long since given up our campaign to persuade young lawyers to venture beyond computerized research.  What’s the point of suggesting that lawyers occasionally cuddle up with digests…

Photo of Eric Alexander

As large swaths of the country continue to get pounded by a variety of winter precipitation, we know that there are many over-the-counter cold and flu preparations being consumed by our readers. We assume many of our readers have minor children who are taking the pediatric versions of these preparations after suitable review of the…

Photo of Eric Alexander

We noted briefly on Tuesday afternoon that the dyspeptic verdict for more than $330 million in the Louisiana AG action over J&J’s marketing of Risperdal had been reversed by the Louisiana Supreme Court and judgment entered for the defendants.  After a little time to digest the decision, we can say that it is thoroughly satisfying…

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This just in:  The Louisiana Supreme Court has reversed the $300 million+ state Medicare verdict in Caldwell v. Janssen Pharmaceutica, Inc., Nos. 2012-C-2447, -2466, slip op. (La. Jan. 28, 2014).  The State Attorney General failed to prove any case under three different statutes – therefore judgment as a matter of law is appropriate.  There…

Photo of Stephen McConnell

One hundred twelve years ago this Friday poor President McKinley was assassinated in Buffalo by an anarchist wannabe. It took the President a little more than a week to expire, and then Theodore Roosevelt (he hated being called “Teddy”) became the youngest (up to that point) man ever to become POTUS. We have been thinking about TR quite a bit lately, ruminating on the virtues of speaking quietly while carrying a big stick.  TR had a remarkable career in all kinds of ways. He’s right up there with Sam Houston and TR’s one-time buddy William Howard Taft in boasting all-time great resumes. Amidst all his accomplishments as a historian, naturalist, and politician, there is this: TR dropped out of Columbia Law School, deciding he would rather govern than litigate. He probably would not be a reader of this blog. He’d rather write something on his own, or run something, or kill something.

We, by contrast, are not going to charge up any hills, or win a Nobel prize, or put a water buffalo head on our library wall. We write about cases. Some of them are dramatic enough, at least for our taste.

Stop us if you’ve heard this one before. Actually, you pretty much have heard it before, or at least something very like it.  Last Friday we discussed an excellent Louisiana federal decision tossing a device case on preemption and TwIqbal grounds.  This week we have another Louisiana federal decision with a robust application of TwIqbal.  The case is Kennedy v. Pfizer, Inc., 2013 U.S. Dist. LEXIS  123292 (W.D. La. Aug. 28, 2013).  Kennedy was decided in the Western District of Louisiana, instead of the Eastern District, and it is a drug case instead of a device case.  Nevertheless, it is further proof of how the federal courts in Louisiana are starting to insist on pleadings that go beyond the boilerplate.  Maybe the courts there have simply seen enough meritless cases, and they have simply had enough.
Continue Reading East Side, West Side: Louisiana Federal Courts Continue to Wield Big Stick of TwIqbal

Drug & Device Resources

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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