Photo of Bexis

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

Photo of Bexis

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

Photo of Michelle Yeary

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

Photo of Michelle Yeary

This post is from the non-Reed Smith side of the blog.

We could have titled today’s post something like Back to Basics or Legal Writing 101 because that is how the opinion in McGuire v. Abbott Laboratories, Inc., 2022 WL 4295402 (E.D. Tex. Sep. 15, 2022) reads.  In other words, it provides a lot

Photo of Stephen McConnell

Back by popular demand, here is the mesh case of the week: Clowe v. Ethicon, Inc., 2022 U.S. Dist. LEXIS 46387 (N.D. Texas March 16, 2022). There is a bit of same-old-same-old in this case, but there is also something new.

Let’s start by getting through the same-old. The plaintiffs (the wife suffered the