If we have said it once, we have said it a hundred times: medical product manufacturers are not insurers of their products. Almost as frequently uttered would be that strict liability is not the same thing as absolute liability. In the show position might be that the temporal relationship between a new medical condition and
Divided Sixth Circuit Affirms “Unique” Application of Offensive Non-Mutual Collateral Estoppel
Twice this year we have reported on trial-court decisions addressing application of offensive non-mutual collateral estoppel—an offensive doctrine that precludes a defendant from relitigating an issue that it lost in earlier litigation against a different plaintiff. One court applied it; the other refused to. Today we report on a Sixth Circuit decision that affirmed, over a spirited dissent, application of the doctrine in a follow-on MDL case.
Our earlier posts catalog the doctrine’s unfair, pernicious results. A quick refresher:
Offensive non-mutual collateral estoppel risks perpetuating an erroneous result by preventing relitigation of issues previously decided against a defendant. If applied, the doctrine can give disproportionate—and potentially dispositive—weight to the decision of a lone judge or jury, no matter how wrong that decision.
The fact that an adverse judgment in one case can cripple a company’s defense in subsequent cases has two adverse consequences apart from the danger of perpetuating error. First, it gives plaintiffs tremendous leverage in settlement negotiations. Second, it induces defendants to spend much more litigating a case than would be warranted by the amount nominally in dispute.…
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No Muss, No Fuss In Disposing Of Litigation-Driven “Injury”
Recently, in describing a decision granting summary judgment in an IVC filter case, we identified some additional analyses we would have liked to have seen:
[W]hile interrelated, we think the concepts of a “compensable injury” and causation are separate. For instance, an exposure might cause a risk of future injury, but state law may hold that such a risk without present injury is not compensable. Or a subclinical injury like pleural thickening may not be compensable, in part because of the inconsistency with the principles of accrual of claims for statute of limitations purposes. Is a medical procedure not required by specific symptoms—regardless of what caused them—itself a compensable injury? We think not. A surgery may be part of the damages allegedly related to an injury allegedly caused by the drug/device/exposure, but is not an injury in and of itself. Gomez did not delve into this either.
That same day—but well after we had set our prescient post to publish—the court in Fuss v. Boston Sci. Corp., No. 2019-02348, 2022 Mass. Super. LEXIS 251 (Mass. Super. Ct. Oct. 20, 2022), did those same analyses in another IVC filter case. Rather than fall prey to the post hoc ergo propter hoc fallacy that plagues plaintiffs’ causation theories in so many drug and device product liability cases, we will admit this is mere coincidence. After all, compensable injury seems like an obvious threshold issue in an IVC filter case where perforation of the inferior vena cava (IVC) is the only claimed injury.
Given the facts of Fuss, we will go a step further and say that it would be better if there were a way to get rid of cases without compensable injuries without the time and expense of going through fact and expert discovery and briefing an all-issues summary judgment motion with accompanying Daubert motion. After a pulmonary embolism, plaintiff had his IVC filter implanted by an experienced vascular surgeon in 2007. It has remained in place, without embolism or any symptoms tied a complication, for the fifteen years since. Then plaintiff saw a lawyer advertisement, was sent by lawyers to get a CT scan ordered by a doctor he did not know and never met, and brought a lawsuit over an alleged perforation. After suing, plaintiff conferred with his implanting surgeon, who, with the benefit of an x-ray, concluded the filter was doing its job and required no treatment or intervention. In deposition, plaintiff admitted that he had been asymptomatic. After the parties completed discovery and teed up motions for both summary judgment and exclusion Massachusetts’s version of a Daubert motion on plaintiff’s catchall expert, plaintiff still had never received any treatment or intervention.…
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Mismatched Ohio Law Decision Out of PPI MDL
This post is from the non-Reed Smith side of the blog only.
Mismatch your socks – you’re bold. Mismatch your shoes – you’re frazzled. Mismatch plates on a dining table – your creating ambience. Mismatch your pizza with pineapple – well don’t knock it until you’ve tried it. Treat the law like it’s your socks…
S.D. Ohio Dismisses Zostavax Class Action
Did you know that both LeBron James and Steph Curry were born in Ohio? So were Neil Armstrong, Halle Berry, Simone Biles, Thomas Edison, Dean Martin, Jack Nicklaus, and Steven Spielberg. (We once ran into – we mean literally – Dean Martin as he was launching himself out of a Beverly Hills restaurant. He was…
Federal Court Makes Hash out of Ohio Product Liability Act
Ivermectin and COVID-19: Seriously, y’all. Stop it.
On Monday, Bexis, laboring on Labor Day, blogged about a kooky Ohio decision ordering the off-label administration of an animal drug, ivermectin, to a seriously ill COVID-19 patient over the objections of that patient’s treating physicians and of the hospital in which the patient was being treated. The decision was kooky both medically and legally.…
Putting Some Teeth In Repose
Straightforward Statutory Abrogation Of Certain Pelvic Mesh Claims
When times are tough, attempted humor can fall flat. Opinions often add little. Fancy prose and witty turns of phrase count for little. Facts, for those whose preconceived notions allow them to be received as such, matter. The language of statutes—potentially powerful drivers of needed stability or change—should be easy to understand even without reference…