Gadolinium is a heavy metal. Sounds ominous. But it is also the active component in contrast agents used in more than 100 million MRI procedures — and its accumulated safety record is, in the words of plaintiff’s own literature, “extraordinarily positive.” Combs v. Bayer AG, 2026 WL 1693470, at *11 n.19 (Okla. App. Ct.
Today we report on the court’s order granting Defendant’s motion to dismiss in Keim-Bacon v. Stryker Corp., No. 4:22-CV-00383-WPJ-MTS, 2024 WL 4886051, at *1 (N.D. Okla. Nov. 25, 2024). It is a straightforward application of Riegel preemption that gets it right on all fronts.
The Scandinavian Total Ankle Replacement System (“STAR”) is a Class
Some of us DDL bloggers have admitted to occasionally choosing our subject case based on its length. In theory a shorter case is less complicated, has less to analyze, and takes less time to write up. In theory. In reality, if there is not enough “there” there, drafting a compelling post can require more creative
Our days of the week are mostly named based on Norse mythology, but our months are firmly Roman. May is named after the deity Maia, whose Roman version was honored for her role in the growth of plants. Her cousin Juno, the queen of the Roman gods, gave us the name for June. In their
As we roll out of bed on the day after Thanksgiving, we are often confronted with contradictory thoughts. For instance, “why did I have that third plate at dinner?” might be followed by “How can I eat some leftovers for breakfast?” Leftovers are as much of an American tradition on this day as watching videos
Since Conte in 2008, we have not made a secret of our view that innovator liability is a bad idea, contrary to traditional tort law principles and to sound public policy. We, especially Bexis, may even be accused of being somewhat obsessed with chronicling the decisions, big and small, on this issue over close to
We can be inundated with news. Old news. New news. Fake news. Breaking news. News that makes you want to break something. News that makes you want to go back to bed. In trying to be discerning consumers of the news, it is useful to do not just a reality check but a date check.
Our learned intermediary rule “head count” lists Oklahoma as solidly in support of the doctrine:
Oklahoma: Edwards v. Basel Pharmaceuticals, 933 P.2d 298, 300-01 (Okla. 1997); Tansy v. Dacomed Corp., 890 P.2d 881, 886 (Okla. 1994); McKee v. Moore, 648 P.2d 21, 24 (Okla. 1982); Cunningham v. Charles Pfizer & Co., 532 P.2d 1377, 1381 (Okla. 1974).
The “head count” lists every state supreme court decision to follow the learned intermediary rule, and the Oklahoma Supreme Court’s four decisions applying the doctrine are exceeded only by Ohio’s six (plus a statute) and Kansas’ five opinions.
Oklahoma courts had never applied the rule to pharmacists, however. As we’ve discussed before, the learned intermediary rule helps pharmacy defendants by precluding claims that pharmacies, as intermediate sellers of prescription drugs, should have some sort of independent duty to warn patients. Just as the rule recognizes physicians as learned intermediaries in passing along relevant warnings from prescription medical product manufacturers to their patients, learned intermediary principles also preserve the physician-patient relationship by precluding imposition of independent warning duties on other possible interlopers – such as pharmacies – who otherwise might be legally required to confuse patients by providing information that conflicts with what prescribing physicians tell their patients. Back in 2011, on occasion of the Arkansas decision Kowalski v. Rose Drugs, Inc., 378 S.W.3d 109 (Ark. 2011), we did a 50-state survey post on this issue, and Oklahoma was missing in action.
Not any longer. In Carista v. Valuck, ___ P.3d ___, 2016 WL 6237855 (Okla. App. Oct. 20, 2016), the court applied the learned intermediary rule to pharmacy-related claims in essentially the same fashion as the previous cases in our survey post. Carista involved a plaintiff (or more precisely, a plaintiff’s decedent) who took too many painkillers – it appears, from the opinion, illegally − overdosed, and then attempted to blame someone else, in this case the pharmacy where the prescriptions were allegedly filled. The case was dismissed, and the plaintiff appealed. Recognizing the issue as one of first impression, the court followed what it concluded, rightly, was the majority rule:
Many other states appear, however, to have adopted the [learned intermediary] doctrine, with limited exceptions, to shield pharmacists from being required to “second guess” a physician’s medical decisions embodied in an otherwise authorized and legally made prescription.
Here’s another guest post, by Richard Dean and Peter Reed of Tucker Ellis. They describe a successful combination (what we might call a “one-two punch” if that phrase were not already taken) of lack of personal jurisdiction under Bauman (also called Daimler) with removal, once the non-diverse (and fraudulently misjoined) plaintiffs lost their defendants. We mentioned the state court ruling a while ago, here, but this post puts it in greater perspective. As always all credit and blame go to our guest posters.
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Plaintiffs like to use multi-plaintiff filings to defeat federal diversity jurisdiction and keep cases in state court in contravention of the spirit, if not the technical language, of the Class Action Fairness Act (“CAFA”). That’s why a recent set of decisions from the Oklahoma state and federal courts is so heartening. First, an Oklahoma state court properly recognized that the bright-line jurisdiction rule of Daimler AG v. Bauman, 124 S. Ct. 746 (2014), precluded the non-forum plaintiffs from obtaining jurisdiction over non-forum defendants, resulting in the dismissal of their suits. Second, those non-forum plaintiffs were the only non-diverse parties, so dismissal of their suits presented a second opportunity for defendants to remove the remaining cases to federal court. Third, a federal court held that the subsequent removal was not barred by the infamous voluntary-involuntary dismissal rule, which is often used to send “other paper” removals back to state court. See Kathleen Teague v. Johnson & Johnson, et al., No. Civ-14-702-L, slip op. (W.D. Okla. Oct. 14, 2014).
This saga began with 11 filings with under 100 plaintiffs each (approximately 650 total) in a single-judge state county court in Oklahoma. In each of the 11 cases, only one or two plaintiffs were from Oklahoma and all the other plaintiffs were from out of state (including one or two jurisdictional spoilers). Defendants removed under principles of fraudulent misjoinder and CAFA. They lost. The District Court remanded the case, see Halliburton v. Johnson & Johnson, 983 F. Supp.2d 1355 (W.D. Okla. 2013), and the Tenth Circuit affirmed that decision, see Parson v. Johnson & Johnson, 749 F.3d 879 (10th Cir. 2014). Defendants argued that filing several hundred cases before a single state court judge constituted an implicit proposal for a joint trial under CAFA, but the Tenth Circuit held that the statute’s technical language required a more express statement of any such request from plaintiffs.Continue Reading Guest Post – Daimler (Bauman) As a Removal Tool in Multi-Plaintiff Cases
Over the past week, we received two new decisions from our readers. This post is about the first of them (there’s an internal hang-up with the other, that we hope will clear up shortly).
The first case sent to us is In re Plavix Related Cases, 2014 WL 3928240 (Ill. Cir. Cook Co. Aug.