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A nifty new decision, Kester v. Zimmer Holdings, Inc., 2010 U.S. Dist. Lexis 110403 (W.D. Pa. Oct. 18, 2010), popped up on one of our automatic searches this morning.  It’s a sequel to the even niftier Kester v. Zimmer Holdings, Inc., 2010 WL 2696467 (W.D. Pa. June 16, 2010), that we reported on

We told you last year about a district court’s favorable Daubert ruling in one of the cases alleging that a bupivacaine shoulder pain pump caused chondrolysis (a breakdown of the cartilage in the shoulder joint). The district court rejected a well-qualified doctor’s general causation opinion under Daubert and, for good measure, rejected his specific causation

One side effect of the Judicial Panel on Multidistrict Litigation’s refusal to make the pain pump cases an MDL is that many different courts are ruling on the inadequacy of the pain pump complaints. The Western District of Pennsylvania took its turn last week in Kester v. Zimmer Holdings, Inc., 2010 U.S. Dist. LEXIS

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We don’t subscribe to the theory of collective conscience, though when Julie Delpy talks about it in Waking Life it’s hard to disagree. Still, there are times when you find yourself repeatedly stumbling against the same idea in ways that seem beyond coincidence. Last week we praised a federal judge in New Jersey who sent

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We’ve got a search with one of the services that notifies us whenever any new opinion cites Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001).  Why?  Well, there’s preemption, of course – which is what Buckman’s all about.  But more generally, we like this search because cases that cite Buckman are

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!

Continue Reading TwIqbal Quashes Quazy Conspiracy Claims

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Many of us who currently labor in the fields of drug-and-device litigation have also worked in other areas of the law. Some of us have worked on criminal cases. We all like to gripe about judges, calling some of them tough or even brutal. Those sorts of labels possess special meaning when it comes to potential deprivations of liberty. You want to see tough? Watch what happens at a bail hearing, or motion to suppress evidence, or, especially, at a sentencing.
Over the years, we’ve occasionally day-dreamed about what some of these “tough” judges would do if they got a gander at some of the fluffy mass tort cases produced by a plaintiff lawyer assembly line.
Well now we know. Few judges have a more robust reputation for toughness than Manuel Real. Judge Real was Chief Judge of the Central District of California for many years. His career has been, to say the least, marked with controversy. For example, he was the judge who found Larry Flynt in contempt after Mr. Flynt offered some, um, colorful language in open court. Everyone agrees that Judge Real has always been decisive, even if there are plenty of folks who don’t like what he decided.
At least a couple plaintiff mass tort lawyers have learned that the hard way. In Adams v. I-Flow Corp., et al, 2010 U.S. Dist. LEXIS 33066 (C.D. Cal. March 30, 2010), 141 plaintiffs sued multiple defendants for injuries allegedly from shoulder pain pumps. Plaintiffs seem to think they can file these cases against all the manufacturers in the market, waiting for later to figure out exactly who manufactured the particular product at issue. See our previous post.
That’s certainly what happened in Adams, where plaintiffs claimed “injury as a result of the unidentified pain pumps’ administration of the unidentified anesthetics.” Adams, 2010 U.S. Dist. LEXIS 33066 at *3. For once, the judge’s exasperation with this strategy seems to equal our own: “Nowhere in their Complaint does even one of the plaintiffs identify the particular pain pump or anesthetic used following his or her specific surgery or the manufacturers of those products.” Id.

Continue Reading Keeping it Real

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Hardly a week goes by when we don’t blow a kiss or two at Twombly/Iqbal. Frankly, we can’t understand why everyone doesn’t share our enthusiasm. What’s wrong with requiring plausibility before subjecting someone to the monetary, stress, and reputational expenses of litigation? It’s enormously frustrating when courts express hostility to Twombly/Iqbal. Sometimes it’s

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We see so many cases alleging “illegal” promotion of off-label use that when we find one where the plaintiffs don’t make that sort of allegation, it makes us sit up and take notice. That’s the case with Meharg v. I-Flow Corp., No. 1:08-cv-184-WTL-TAB, slip op. (S.D. Ind. March 1, 2010). It’s a pain pump case – the allegations being that these pumps, which are used after shoulder surgery, continuously “infused” various types of anesthetics intended to (evidently successfully) reduce post surgical pain, but that the continuous exposure (or anything else a creative expert might come up with to blame on defendants) caused long-term deterioration (“chondrolysis”) of shoulder cartilage.
The pumps (which are FDA approved) are machines, and of course machines don’t care what you put in them – they’ll infuse it. Thus, the most interesting aspect of pain pump cases we’d seen prior to Meharg had to do with product identification. That is, plaintiffs have been trying to sue various drug companies without even being able to allege the the defendant’s drug was actually used. That’s a no-no, and it’s produced some favorable decisions reaffirming the rule that a plaintiff can only sue the manufacturer of a product s/he actually used. Timmons v. Linvatec Corp., ___ F.R.D. ___, 2010 WL 476661, at *3-4 (C.D. Cal. Feb. 9, 2010); Haskins v. Zimmer Holdings Inc., 2010 WL 342552, at *2 (D. Vt. Jan. 29, 2010); Gilmore v. DJO Inc., 663 F. Supp.2d 856, 860-61 (D. Ariz. 2009); Combs v. Stryker Corp., 2009 WL 4929110, at *2-3 (E.D. Cal. Dec. 14, 2009); Dittman v. DJO, LLC, 2009 WL 3246128, at *3 (D. Colo. Oct. 5, 2009); Sherman v. Stryker Corp., 2009 WL 2241664 at *5 (C.D. Cal. March 30, 2009). These pain pump cases are yet another reason why we like Twombly/Iqbal.
We expect that the pain pump litigation will continue producing decisions on weird points, because the plaintiffs will be suing the wrong defendants, the manufacturers of the drugs used in the pumps, over injuries that were caused, not so much by the drugs, but by how the drugs were continuously infused by the pumps – if there’s any causation at all, that is. In fact, we can almost guarantee it.

Continue Reading On State Of The Art And Preemption