We write today fresh from a short cruise to celebrate a milestone birthday of the Drug and Device Law Dowager Countess. We view cruising, and the limitations of its inevitable confinement, as the perfect antidote to the often-unrelieved breakneck pace of our daily lives. And this cruise was no exception. We eschewed shore excursions in
In drug and device litigation, product identification can be a significant issue. Many of us have poured over medical records and worked through question modules at depositions to determine whether the plaintiff actually used our client’s drug or device. Undermining product identification can be one of the quickest ways to end a lawsuit. But it doesn’t get much quicker than it happened in Weddle v. Smith & Nephew, Inc., 2016 U.S. Dist. 48512 (N.D. Ill. Apr. 11, 2016). There, the plaintiff couldn’t (at least so far) get passed the pleadings.
In a variant of the old “when in doubt, pick C” approach to standardized tests, in Weddle, plaintiff went with, “when in doubt, pick them all.” Plaintiff had a Trident Hindfoot Fusion Nail system (“Trident), manufactured by Smith & Nephew, Inc., implanted in her foot. Id. at * 1-2. But other products, including nails and cement manufactured by Howmedica Osteonics Corp. and screws manufactured by DePuy Synthes Sales, Inc., were also implanted. After pain and other problems that required several more surgeries, plaintiff sued everybody. Id. at * 2. She alleged that Smith’s Trident, and/or Howmedica’s nails and cement, and/or DePuy’s screws caused her problems. Id. at * 8. In other words, she picked everybody. But, much like using your #2 pencil to fill in all the circles on a standardized test answer sheet, it didn’t work. The Court dismissed her complaint for failure to state a plausible claim. Id. at *20.
Today is National Grammar Day. Before anyone of our posts goes online, it dashes thorough a gauntlet of reviewers. Those reviewers collectively possess just the right amount of neurotic fastidiousness to ensure that what emerges is mostly correct and at least intermittently coherent. Some of us pretend to actually know Strunk & White by heart. Still, errors occasionally evade the dragnet of dorks. In honor of National Grammar Day, we have festooned today’s post with enough errors to keep all of you grammar cops busy. We do this as a matter of principal.
But there are no errors in the case under review. We have a rare favorable medical device decision out of the Seventh Circuit. The case is called Kallal v. Ciba Vision Corporation Inc., 2015 U.S. App. LEXIS 2987 (7th Cir. Feb. 24, 2015). Mind you, the Seventh Circuit is one court we think the world of. Any court that is home to legal luminaries like Posner, Easterbrook, Wood, et al. must be fairy formidable. But the Seventh Circuit is also home to the hideous Bausch precedent. Perhaps you remember Bausch. Its hard to forget. The Seventh Circuit permitted a plaintiff to vaguely state a parallel claim which lacked substance under both federal and state law. TwIqbal pleading requirements impacted the case not at all. Irregardless of the Supreme Court’s instruction that lame cases should be dismissed before subjecting defendants’ to expensive discovery, the Bausch court elevated the plaintiff’s desire for discovery into something sacramental.
But Kallal is much better than that is. The plaintiff claimed that defective contact lenses had hurt his eyes. The plaintiff did not have alot of evidence. The company had recalled some of it’s contact lenses. Courageously (after Bausch) the district court held that the plaintiff’s claims were preempted nonetheless, and that the parallel claim could not save the case. The plaintiff argued that his suite fit inside of the Riegel exception because the company failed to list ion permeability as a “material characteristic” in its premarket approval list. The company responded that the FDA did not require them to meet any ion permeability threshold. The plaintiff did not offer any evidence to the contrary. In any jurisdiction but Bausch-land, that argument would win the preemption day for the defendant. And mirabile dictum, it managed to win for the defendant in Kallal. At least at the lower court’s level.
Today’s post is really three different posts on three unrelated subjects. None of them very long (at least by DDLaw Blog standards), but we think that each will be of interest to at least some our readers.
On Generic Plaintiffs’ Preemption “Win” in New Jersey
This piece is from the non-Dechert side of the blog.
Plaintiffs alleging failure to warn of the risks of a generic drug scored a “win” of sorts in In re Reglan Litigation, 2014 WL 5840281 (N.J. Super. App. Div. Nov. 12, 2014). The court held, in an unpublished decision, that “failure-to-update” claims survived the otherwise comprehensive impossibility preemption that applies to generic drugs:
[T]he trial court correctly determined that plaintiffs’ claims based on the Generic Defendants’ failure to update their warnings to conform to changes made to the brand-name warnings are not preempted by federal law. The court correctly found that allowing plaintiffs to assert these claims would not frustrate any of the purposes or objectives that Congress sought to achieve . . . . Moreover, plaintiffs are not pursuing state-law claims based on an alleged violation of federal law.
Id. at *4. As the Appellate Division points out, non-preemption of “duty to update” is the majority view.
We may not like it, but we’re not losing much sleep about it.
A recent decision in the propoxyphene litigation – Schiller v. Eli Lilly & Co., No. 2:12-247-DCR (E.D. Ky. Apr. 7, 2014) – confirms a now basic premise of product liability law: if you claim to have been injured by a drug that you don’t identify, you will lose.
The plaintiff in Schiller, a resident…
Today is when we hightail our way out of work early to grab the last pumpkin pie and bottle of plonk from the shelves. We are required to bring something to our Thanksgiving host, and apparently an appetite and ugly sweater will not suffice. We shall certainly bring thanks to the dinner.
We have heaps…
This post is from the Reed Smith side of the blog only – the Dechert lawyers were not involved.
The Iowa Court of Appeals has affirmed summary judgment entered in favor of both branded and generic manufacturers of metoclopramide, looking at Mensing’s effect on both in the process. In Huck v. Trimark Physicians Group,…
A lot of things happened last week – so much that our usual wrap-up search last Friday took over three hours, which is more than twice as long as normal. Since there were too many cases of interest to blog about separately, we’re doing the next best thing, which is to give our readers a…
What follows is a “guest post” by Melissa Wojtylak of Reed Smith. We place the term in quotes because Melissa has expressed an interest in becoming a member of our crew of merry blogsters. We’re inclined to say yes (anything that reduces our own workloads is great), so expect to reading more of her work.