As insightful and modest as the Blog can be, we are not infallible. Every once in a while, two posts get written on the same decision, sometimes because we try to make sure a new post goes up every non-holiday weekday of the year. Because of the aforementioned modesty, however, we are hesitant to deprive
We have lost track of how many times we have written on pelvic mesh cases as they have gone through a number of district courts on remand and occasionally up on appeal to circuit courts. One theme we have seen play out over and over is that plaintiff lawyers who took on more cases than
We’ve finished reading through the New Jersey Supreme Court’s unanimous decision in Hrymoc v. Ethicon, Inc., ___ A.3d ___, 2023 WL 4714042 (N.J. July 25, 2023) (which should really be captioned “McGinnis” because plaintiff Hrymoc settled, see n.1). The good – really good – news is that an abusively obtained nuclear ($68 million+) verdict goes bye-bye. That alone is grounds for celebration.Continue Reading Perfect Defense §510(k) Compliance Win in New Jersey May Be Pyrrhic
Stop us if you have heard us say “stop us if you have heard this before.” Pelvic mesh cases on remand have often faced the harsh realities of procedural requirements and burdens of proof because transferee judges have treated them like individual cases rather than items in an inventory. Decisions about the impact of failure
At some point, early in the pelvic mesh litigation, some genius on the other side decided it would be a good idea to include a stand-alone claim for “defective product” in at least one of the plaintiffs’ standard complaints. “Defective product” was pleaded as some generic form of strict liability, separate and apart from the three accepted theories of manufacturing, design, and warning defect. We have no idea where this concept of “defective product” came from. It’s not adopted by the law of any state as far as we can tell.Continue Reading Defective Claims for “Defective Product”
The first thing you learn as an appellate clerk is the importance of the standard of review. If the review is de novo – purely legal issues – your judge will not defer at all to what happened below. It’s a whole new (hence, de novo) ballgame. If the review is for abuse of discretion
This post is from the non-Reed Smith side of the blog.
Defendants in Pizzitola v. Ethicon, Inc., filed motions to exclude two of plaintiff’s experts and both decisions (two orders issued) heavily favored the defense, rejecting recurrent design defect arguments by plaintiffs.
The product at issue is synthetic pelvic mesh. Plaintiff’s first challenged expert was a gynecologic surgeon. While is area of practice may overlap with issues in the case, his report went well beyond both relevant issues and his area of expertise. Namely, plaintiff’s expert wanted to opine that lots of things were alternative designs that in fact were not. Starting with a different medical procedure altogether. “It is not an alternative design of any product. In fact, it is not a product at all.” Pizzitola I, 2022 U.S. Dist. LEXIS 184352, *6 (S.D. Tex. Oct. 7, 2022). Plaintiff argued the testimony was relevant to a risk/utility analysis but showing that a different medical procedure may be safer, “does not affect whether a product has utility and/or risks.” Id. at *7. The decision to perform a different medical procedure lies within the medical judgment of the treating surgeon and has no bearing on the design of the device at issue. Id. Continue Reading Two Strikes Against Plaintiff’s Experts in Texas Pelvic Mesh Case
A few months ago, we reported on what we believed—and still believe—was an abusive application of offensive non-mutual collateral estoppel, Freeman v. Ethicon, Inc., 2022 WL 3147194 (C.D. Cal. 2022), which precluded those defendants in one of their numerous pelvic mesh cases from disputing at a jury trial certain factual findings entered by a