For the first time in two years, we write from the confines of our office in downtown Philadelphia. While we loved the full-time “work from home” regime, we have fondly re-embraced the near-forgotten view from our 30th-floor window, along with our Dancing Barney doll, our RBG action figure, and our solar-powered effigy of
California is called the land of fruits and nuts, but the Harry and David Company – esteemed purveyor of fruits, nuts, and other delicacies – calls Oregon its home. Oregon gave us Tonya Harding and Ndamukong Suh. Oregon is also the only state besides New Jersey that forbids motorists from pumping their own gas.
We
We’ve seen Griffith v. Blatt, 51 P.3d 1256 (Or. 2002), cited – and not just by plaintiffs – for broad propositions, like Oregon abolished the learned intermediary rule in strict liability cases, or that strict liability, generally, is strait-jacketed by legislative adoption of Restatement (Second) of Torts §402A (1965) and its comments.
We don’t
Plaintiffs love lobbing civil conspiracy claims into drug and device cases. Maybe it’s because there’s a deep pocket on the sidelines. Maybe plaintiffs hope to use a bogus “conspiracy” allegation to argue for the broad admissibility of conduct evidence or “co-conspirator statements.” Or, more likely, maybe the plaintiff just can’t figure out who to blame (so blame everyone!).
A federal court recently wielded our good friend TwIqbal and blew out civil conspiracy claims in a pair of pain pump cases. The cases are virtually identical: both plaintiffs alleged a civil conspiracy between the pain pump manufacturer and a distributor, claiming that the defendants conspired to promote pain pumps for an off-label use in violation of FDA regulations. See Dean v. DJO, LLC, 2010 WL 1999295 (D. Or. May 17, 2010); Flint v. DJO, LLC, 2010 WL 1999302 (D. Or. May 17, 2010). The off-label use in both cases was the implantation of pain pumps into the shoulder joint after arthroscopic surgery. In one case, DJO was alleged to be a co-conspirator who participated in the design, manufacture, marketing, or distribution of the pain pump at issue (the Flint case). In the other case (Dean), the plaintiff did not allege that DJO had anything to do with the specific pain pump at issue, but rather was liable for conspiring to promote pain pumps (generally) off-label. Shades of Bone Screw!
When we hear about another state supreme court deciding a medical monitoring case, we start to salivate.
(That’s not a pretty picture, we know.)
Imagine our anticipation when we kicked back with a copy of Lowe v. Philip Morris USA Inc., No. CC 0111-11895, CA A123025, SC S054378, slip op. (Or. May 1, 2008).