It’s a short week, so we are going to do a short post about a short decision on a product that lasted a long time.
An inferior vena cava (“IVC”) filter was implanted in plaintiff in 2004. Some years later she experienced a complication, not identified in the decision, which led her to file a
Lawyers and wannabe lawyers like to use Latin words and phrases without always understanding their original meaning. English, a Germanic language according to the family tree, is peppered with words that are derived from Latin. Being the conglomeration that it is, English includes some words—egregious comes to mind—that now mean the opposite of their Latin
A little less than three years ago we posted about a decision by a federal court in Pennsylvania that twisted Texas and Supreme Court precedent to find an independent claim for failure to test under Texas law. So, we could not resist blogging about a Texas court reaching the exact opposite conclusion.
Earlier this year
When last we wrote, we had just watched our gorgeous standard poodle puppy, Luca, compete in his first weekend of dog shows. He was still learning the ropes, and, though he looked beautiful, he did not win any points. (Dog shows are worth from one to five points for each breed, depending on the number
Today’s message is a reminder that specific personal jurisdiction is just that – both specific and personal. That means plaintiffs can’t group plead their way around personal jurisdiction lumping parents and subsidiaries together. Plaintiffs must identify each defendant’s individual role in causing the alleged harm. If plaintiffs seek to impute the jurisdictional contacts of one
Back in the antediluvian era of the Bone Screw Litigation some 25 years ago, Bexis was responsible for crafting (and sometimes outright inventing, see fraud on the FDA) defenses for that then-unusual medical device-related mass tort. One of the first post-MDL-remand Bone Screw cases involved a Louisiana statute, La. Stat. Rev. §9:2800.56, requiring that, for a product to be “unreasonably dangerous in design,” the plaintiff must establish that “[t]here existed an alternative design for the product that was capable of preventing the claimant’s damage” based on the statute’s risk/utility test.Continue Reading A Primer on Alternative Design
As much as we liked those parts of In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, 888 F.3d 753 (5th Cir. 2018) (applying Texas law), that overturned a half-billion dollar verdict caused by a combination of attorney misconduct and judicial lassitude, we also recognized the problematic effects of certain other Fifth Circuit rulings in that decision. While the good parts of Pinnacle Hip were good enough to win that decision a spot in our 2018 top ten cases, that decision’s adverse aspects were bad enough that it also landed on our list of 2018’s worst ten decisions. Specifically we observed:
The most serious error the court made was refusing to apply established Texas law that comment k precludes strict liability across the board. Pinnacle Hip ignored – really ignored − a half dozen prior decisions (including one of its own) on this issue. Even if there wasn’t any precedent (which there was), expanding state-law liability where the state courts have not is not the job of a federal court sitting in diversity.
Continue Reading Comment K, Presumptions, and Medical Device Design Defects Under Texas Law
One of the stock P-side responses, in the post-Bauman personal jurisdiction environment, to a jurisdictionally-based motion to dismiss is to seek “jurisdictional discovery” – the more onerous the better – in an attempt both to slow the often-inevitable dismissal and also to drive up the nuisance value of the case. That’s the main reason that on our personal jurisdiction cheat sheet we note when jurisdictional discovery is denied.Continue Reading Jurisdictional Discovery Is Not Bigger in Texas
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
We have written quite a few posts about litigation over inferior vena cava filters made by various companies. Most of those posts focused on decisions in cases pending in or remanded after a stint in one of two MDLs. Broadly speaking, those decisions involved filters intended to remain in place permanently and alleged injuries from