Medical device sales representatives are often present in the operating room during surgical procedures, especially with procedures involving orthopedic devices.  With those kinds of devices (and others), the hospital typically contacts the sales representative in advance, and he or she is charged with delivering the device in the specified size and providing any specialized instrumentation

As we write this, our fair city remains in a blissful haze following our Eagles’ 33-10 rout of the 49’ers to go 7-1 in the NFC East, so it might be appropriate to call today’s opinion a “touchdown.” On the other hand, the World Series approaches Game 6, following a game in which twenty-five runs

We often lament, in our curmudgeonly way, that plaintiffs in obviously lacking cases get chance after chance to keep going, all the while imposing costs and risks on the defendants and a burdens on court dockets.  Plaintiffs tend to get three strikes on complaints that fail to plead cognizable claims or cannot help but plead right into a clear defense.  Plaintiffs are sometimes allowed to offer extra experts after Daubert wipes out their first wave or two.  Summary judgment is denied on the pretense that a jury could find for the plaintiff based on tenuous and speculative liability or causation arguments.  The reality, particularly in cases where hundreds or thousands of plaintiffs sue over the same drug or device, is that the calculus of the number of pending cases, the time they have been pending, and the proximity to trial plays into the likelihood of large settlements.  Even where the manufacturer has good reason to believe that the cases against it should not succeed, the cost of pursuing them to the bitter end can weigh in favor of paying to settle cases.  So, when we see a drug or device manufacturer take a litigation to its end (or the end for one of the major fronts), we applaud its determination.

For the In re Mirena IUD Products Liability Litigation MDL, the litigation looks to be fairly short-lived as far as such litigations go.  In April 2013, the JPML consolidated cases because of the common issues of “the alleged risks of uterine perforation and migration associated with Mirena and the adequacy of the product’s warning label.”  In less than three years, the parties did fact discovery, selected bellwether cases, did expert discovery, and filed dueling Daubert motions.  We discussed the lengthy ruling on those motions here, noting that the court “was not afraid to shut down entire theories on which the plaintiffs based their claims.”  All of the plaintiffs with pending cases after the Daubert decision apparently agreed that their cases required them to prove that the product can cause “secondary perforation”—definition discussed below—which was something the plaintiffs’ experts could not support with admissible opinions.  The plaintiffs also agreed that the product liability law of each of their home jurisdictions generally required admissible expert evidence on general causation.  In opposing defendant’s motion for summary judgment, plaintiffs offered two arguments:  1) the injury here makes general causation something that the jury can decide without supporting expert testimony from plaintiff despite the general requirement; and 2) a series of purported admissions from the product’s label and elsewhere can establish general causation.  In rejecting both arguments, the court was up front that it was doing so “reluctantly, knowing that it will doom hundreds of cases,” which showed as each proffered decision and statement was analyzed patiently. In re Mirena IUD Prods. Liab. Litig., Nos. 13-MD-2434 (CS), 13-MC-2434 (CS), 2016 U.S. Dist. LEXIS 99221, **67-68 (S.D.N.Y. July 28, 2016).  We, of course, have no such reluctance in seeing the decision as correct and the basis for bringing the cases as dubious from the start.


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