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Happy Valentine’s Day. To celebrate, we will discuss a court decision that we love.

Preemption and the Ohio Product Liability Act (OPLA) are two of the best friends a drug/device defense lawyer has.  Both show up in Groeschen v. Alcon Laboratories, Inc., 2024 Ohio Misc. LEXIS 2 (Ohio Ct. Comm. Pleas Feb. 2, 2024). As

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None of our regular bloggers are solo practitioners.  And we’ve all been practicing for quite some time.  So, it is fair to stay that we’ve all had ample opportunity to offer writing advice to more junior lawyers.  Know your audience.  Use active voice.  Stop using legalese.  Avoid redundancy. And be direct and concise.  Which

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Growing up down in Georgia, Bexis used the phrase “a whole lotta nuthin’” frequently when encountering things (like the 1970s Underground Atlanta tourist trap) or people (like Lester Maddox, who governed the same way he rode bicycles) that didn’t impress him much.  That’s the phrase that came to mind when we read In re E. I. du Pont de Nemours & Co. C-8 Personal Injury Litigation, ___ F.4th ___, 2023 WL 8183812 (6th Cir. Nov. 27, 2023).  Indeed, the opening sentence of the du Pont opinion was:  “Seldom is so ambitious a case filed on so slight a basis.”  Id. at 81.  And yes, du Pont was an appeal from yet another bizarrely pro-plaintiff MDL decision.Continue Reading A Whole Lotta Nuthin’

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We’ve written about Lone Pine orders many times before.  (Here and here, for example.) In brief, a Lone Pine order (so-called because that is the name of the seminal New Jersey case) requires plaintiffs to furnish medical evidence, usually in the form of an expert affidavit, showing that the plaintiff suffered from the

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We don’t have much patience for litigation attempting to seek damages for drug addicts who injured or killed themselves through their illegal use of drugs.  We’ve discussed several times how such plaintiffs (or their estates) should lose under the in pari delicto doctrine that prevents criminals from recovering damages for the consequences of their own criminal acts.  Lots of cases so hold.  See, e.g., Albert v. Sheeley’s Drug Store, Inc., 265 A.3d 442, 448 (Pa. 2021); Price v. Perdue Pharma Co., 920 So.2d 479, 486 (Miss. 2006); Orzel v. Scott Drug Co., 537 N.W.2d 208, 213 (Mich. 1995); Patten v. Raddatz, 895 P.2d 633, 637-38 (Mont. 1995); Lastrina v. Bettauer, 289 A.3d 1222, 1234 (Conn. App. 2023); Gentile v. Malenick, 112 N.Y.S.3d 364, 365 (N.Y.A.D. 2019); Kaminer v. Eckerd Corp., 966 So.2d 452, 454 (Fla. App. 2007); Pappas v. Clark, 494 N.W.2d 245, 247 (Iowa App. 1992); Inge v. McClelland, 725 F. Appx. 634, 638 (10th Cir. 2018) (applying New Mexico law); Romero v. United States, 658 F. Appx. 376, 380 (10th Cir. 2016) (applying New Mexico law); Messerli v. AW Distributing, Inc., 2023 WL 4295365, at *5 (D. Kan. June 30, 2023), certif. denied, 2023 WL 6961977 (D. Kan. Oct. 20, 2023); Alston v. Caraco Pharmaceutical, Inc., 670 F. Supp.2d 279, 287 (S.D.N.Y. 2009); Sorrentino v. Barr Laboratories, Inc., 397 F. Supp.2d 418, 422-23 (W.D.N.Y. 2005), aff’d, 218 Fed. Appx. 7 (2d Cir. 2007); Foister v. Purdue Pharma, L.P., 295 F. Supp.2d 693, 705 (E.D. Ky. 2003).Continue Reading Another Opioid Addict Overdose Case Dismissed, Several Times Over

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Today we report on Farson v. Coopersurgical, Inc., 2023 WL 5002818 (N.D. Ohio 2023), a product-liability decision that dismissed all claims against all defendants based on lack of personal jurisdiction, preemption, and Twombly.

Claiming that she was injured when an implantable medical device migrated in her body, the plaintiff brought suit in Ohio

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As evidenced by our PMA Preemption Score Card, on which today’s case became the 651st entry, defendant manufacturers of FDA-approved Class III medical devices generally do pretty well with preemption motions.  But plaintiffs keep filing PMA medical device complaints, so we’ll keep posting about them. 

Which brings us to today’s case, Arnold v.

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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

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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.Continue Reading Divided Sixth Circuit Affirms “Unique” Application of Offensive Non-Mutual Collateral Estoppel

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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.Continue Reading No Muss, No Fuss In Disposing Of Litigation-Driven “Injury”