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For some reason, just as pharmaceutical manufacturing is concentrated in New Jersey and Southeastern Pennsylvania, and just as there are an abnormal number of Class II implant manufacturers in Indiana, the epicenter of American pre-market approved medical device manufacturing seems to be in Minnesota.

Similarly, preemption is at the epicenter of medical device product liability litigation involving PMA devices.

Since plaintiffs are able to avoid federal court through the simple stratagem of suing defendants (all defendants, not just medical device manufacturers) in their “home” courts, we have been wondering how PMA preemption would fare in Minnesota state court.  Minnesota already has a relatively expansive consumer protection statute and (until recently) an extremely long (six-year) statute of limitations for personal injury cases.  If there were also an indication that Minnesota courts would view PMA preemption in a pro-plaintiff fashion, we could see Philadelphia-style influx of litigation tourism.

Fortunately that doesn’t appear to be in the offing.  A couple of years ago, Medtronic scored big with In re Medtronic Sprint Fidelis Leads State Court Litigation, 2009 WL 3417867 (Minn. Dist. Hennepin Co. Oct. 20, 2009), which as we discussed at the time, adopted just about all the pro-preemption holdings in In re Medtronic Sprint Fidelis Leads Products Liability Litigation, 592 F. Supp.2d 1147 (D. Minn. 2009), aff’d, 623 F.3d 1200 (8th Cir. Oct 15, 2010).  There were a lot of good holdings, which we gloated over here.

Still, Sprint Fidelis was just a county-level trial court.  The Sprint Fidelis plaintiffs chose not to take their chances on appeal.  One bad decision from the Court of Appeals of Minnesota could wipe everything out.

Or, conversely, one good appellate decision could cement everything in place and send the litigation tourists scurrying elsewhere.

Fortunately, the latter happened the other day.  See Lamere v. St. Jude Medical, Inc., ___ N.W.2d ___, 2013 WL 599178, slip op. (Minn. App. Feb 19, 2013).  Lamere involved a Class III PMA approved mechanical heart valve, and the court affirmed summary judgment on the basis of preemption.  Not even the Public Citizen Litigation Group (probably the other side’s biggest guns on preemption) could sway the result in Lamere.

Continue Reading Preemption in the Land of 10,000 Medical Devices

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Good news/Bad news jokes are a staple of the Great American
Joke Machine. Not surprisingly, a lot of the jokes involve doctors. For
Doctor: I have good news and bad
news for you. The good news is that these test results say you have 24 hours to
live. The bad news ….

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Today’s post is by a guest blogger, Reed Smith’s own Jobina Jones-McDonnell.
She gets all the credit, and you can just blame Bexis.
This post discusses a recent Minnesota Supreme Court opinion rejecting a “duty to train” claim in a non-drug/device case.  The Court held that a manufacturer doesn’t have a duty to train persons how to use its products, even where the manufacturer undertook to provide training as part of the purchase price of the product at issue.
The case, Glorvigen v. Cirrus Design Corp., ___ N.W.2d ___, 2012 WL 2913203 (Minn. 2012), decided on July 18, 2012, involved an airplane crash where the pilot/owner and his passenger died.  The estates of the pilot and passenger filed suit against (guess who?) the manufacturer and seller of the plane. The Minnesota Supreme Court was reviewing the appellate court’s reversal of the jury’s special verdict in plaintiffs’ favor.  That procedural posture meant that, if the defendant was going to win on appeal, it essentially had to do it as a matter of law, and that’s just what happened.
The pilot purchased the plane about a month prior to the crash.  As part of the purchase price, the manufacturer defendant provided a 2-day on the ground and in-flight transition training course.   Transition training is standard in the aviation industry.  It builds on the pilot’s previous experience and gives the pilot individualized training in the new plane.  We’ve seen similar programmes offered by makers of complex medical devices.

Continue Reading Minnesota’s High Court Says No “Duty to Train”

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We really don’t like it when state aspiring governors (that’s what “AG” stands for, isn’t it?) come after our clients − especially when our clients were merely exercising their First Amendment rights to make truthful statements about this or that off-label use.  But then, the state AGs never cared what we thought before, so why

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We’re involved in HT litigation, so we can’t comment much, but readers will want to look at Rick v. Wyeth, Inc., ___ F.3d ___, Nos. 3354, et al., slip op. (8th Cir. Oct. 25, 2011).  Trying to take advantage of Minnesota’s notoriously long statute of limitations, the plaintiffs, who had originally filed in

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This guest post was written by Sean P. Costello. Mr. Costello is an associate resident in the Atlanta office of Jones Day. This post is entirely his work. It, of course, represents only his views, and not the views of his clients or firm:
At 10:00 a.m. (Central Standard Time) today, the Minnesota

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We’ve now had a chance to read the Eighth Circuit’s short (ten-page) decision in In re St. Jude Medical, Inc., Silzone Heart Valve Prods. Liab. Litig., No. 06-3860, slip. op. (8th Cir. Apr. 9. 2008) (link) (now reported at, 522 F.3d 836). Sometimes good things come in small packages.
St. Jude recalled all