Remember right after Mensing when the refrain from the other side of the “v.” was that the “immunity” conferred upon generics meant that branded drugs were “safer”? But once the other side realized that generic preemption was for real, that line was quickly airbrushed from their playbook (ATLA pulled down that press release within a
Since we haven’t heard any of the services mention it, we thought we’d point out that the learned intermediary rule recently got a lengthy endorsement in prescription medical product cases from the Tennessee Supreme Court:
[T]he learned intermediary doctrine. . ., which allows a seller in a failure to warn case to rely on an
We wish everyone a nice Martin Luther King Day. Today not only honors a great American, it has also evolved into a day of service. That says something profound and wonderful about the honoree. We’ll do our best to observe the spirit of the day. There are all sorts of service. A friend in SoCal is helping to paint a lifeguard station. That makes us wildly jealous, given that we are staring outside at sheets of ice and awaiting the next visit of “Wintery Mix.”
Frankly, we were a little worried about whether this blog could render any real service today. There’s been a Monday curse of late, as we’ve opened the last couple of weeks with kvetch-fests on truly dreadful opinions (Bausch, Stevens, and Bartlett). But recently the Middle District of Tennessee rode to the rescue and delivered a useful opinion in a pain pump case, Rodriguez v. Stryker Corp., 2011 U.S. Dist. LEXIS 1252 (Jan. 5, 2011). It grants summary judgment to the defendants and supports its ruling with common sense and clear thinking.
The plaintiff in Rodriguez underwent shoulder surgery in 2004, including installation of a pain pump. A follow-up procedure in 2008 showed that the cartilage in the plaintiff’s shoulder had been destroyed. The plaintiff filed a lawsuit claiming that the pain pump had caused chondrolysis (a condition marked by destruction of the articular cartilage). The plaintiff alleged causes of action for strict liability, negligence, and breach of implied warranty.
The court applied Comment K to the strict liability claim, concluding that with “unavoidably unsafe products” such as a prescription medical device, the only issue was whether the manufacturer had failed to supply appropriate warnings. Rodriguez, 2011 U.S. Dist. LEXIS 1252, * 19. See how straightforward that was? Unlike the Bartlett case, the court didn’t conflate design defect and failure-to-warn theories.Continue Reading Helpful Pain Pump Case on Comment K and Warning Causation
This is a Bexis only post. Herrmann represents Wyeth and doesn’t want to go on record on this.
We mentioned the Montgomery v. Wyeth case before, here. Well we’re pleased to report that the Sixth Circuit today affirmed the defense summary judgment in Montgomery, slip op. here. The moral of Montgomery is
As you know, we watch the medical device preemption cases.
But here’s a Riegel wrinkle. (In fact, we like this case so much that we might call it
By the standards of the blogosphere, this news is prehistoric. It dates not from last week or (perish the thought!) last month, but all the way back to February, when we were young. Nonetheless, the Tennessee Supreme Court’s decision in Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301 (Tenn. 2008) (link from the
For reasons too numerous to mention, neither of us can comment on the recent decision in Montgomery v. Wyeth, No. 1:05-CV-323, slip op. (E.D. Tenn. Mar. 19, 2008) (copy here) (now published at 540 F. Supp.2d 933).
But you should know about that decision, so we’re describing it (very briefly) here, stripped of