Texas

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This just happened yesterday down in Texas.  The defendant in this 77-plaintiff action raised fraudulent joinder/misjoinder and lack of personal jurisdiction in removing the case. Locke v. Ethicon, C.A. No. 4:14-CV-2648, slip op. (S.D. Tex. Nov. 10, 2014).  The defendant won, as the out-of-state (and non-diverse) plaintiffs were dismissed due to lack of personal jurisdiction under Daimler AG v. Bauman, 134 S. Ct. 746 (2014).  No other remand-related grounds (such as fraudulent (mis)joinder) had to be reached.

Of even greater importance is the “how to” aspect of Locke.  Can a court determining a remand petition decide a question of personal jurisdiction (the Bauman issue) prior to a question of subject matter jurisdiction (fraudulent (mis)joinder)?  The Locke court said “yes,” relying on Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 586-87 (1999).  Slip op. at 3-4 & n.3.  That’s critical, because unless a court can reach the Bauman issue first, it would have to find some basis to dismiss the non-diverse plaintiffs under fraudulent (mis)joinder standards – and those standards are much more difficult to satisfy.  The Supreme Court, however, had resolved this issue in Ruhrgas.

[T]he Court notes that the two motions present the Court with a procedural dilemma.  If the Court addresses the question of subject matter jurisdiction first, then [one of the plaintiffs’] New Jersey citizenship destroys diversity, thereby justifying remand for the Texas state court to resolve the personal jurisdiction issue.  Alternatively, if the Court addresses the question of personal jurisdiction first and finds for the defendants, dismissal would simultaneously reduce the number of plaintiffs to one and permit the Court to retain jurisdiction over the case.  It is well settled that a district court has discretion to dispose of jurisdictional questions in a manner that promotes judicial economy.

Locke, slip op. at 3 (citing Ruhrgas and other cases following it).  This is the first time (we ran a search) that Ruhrgas has been invoked in a fraudulent (mis)joinder remand where the basis for fraudulent joinder is inability of nondiverse plaintiffs to obtain personal jurisdiction over the defendant under Bauman.Continue Reading Breaking News: Win On Post-Bauman Personal Jurisdiction Avoids Fraudulent (Mis)Joinder Pitfalls

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We don’t particularly like starting our week with an adverse decision; certainly not after a holiday weekend.  But, we seem to have stumbled upon a variety of negative decisions to report on this week, so we’ll just dive in and get it over with. Fittingly for the day after Labor Day (we think), we decided to start with a case that centers on employee liability – specifically whether plaintiff had sufficiently pleaded his claims against the non-diverse sales representative so as warrant remand to state court.  The court said yes.

The case is Hutchens v. Smith & Nephew, Inc., 2104 U.S. Dist. LEXIS 116839 (N.D. Tex. Aug. 22, 2014).  Plaintiff sued the manufacturer and one of its sales reps over an allegedly defective hip implant, including a claim for violations of the Texas Deceptive Trade Practices Act (“DTPA”).  Id. at *6.  Defendants removed the case to federal court alleging that the sales rep had been fraudulently joined.  On plaintiff’s motion to remand, the question before the court was whether the claims against the sales rep survived a Rule 12(b)(6) dismissal-type analysis. Although pending in federal court, the court opted to apply Texas’ more lenient “fair notice” pleading requirement finding that the “standard applicable at the time the initial lawsuit was filed in state court should govern.”  Id. at *10.  First strike – no TwIqbal.

Moving to the substantive analysis, the court only examined plaintiff’s DTPA claim – only one claim against the sales rep needed to survive to remand the entire case.  The DTPA claim allegations as to the sales rep were that he:

exercised substantial control over the provision of warnings and . . . provided inadequate warnings, instructions, or representations to Plaintiffs that were incorrect, violated the . . . [DTPA] and induced Plaintiffs to implant the identified devices, causing Plaintiffs’ harm.

Continue Reading Remand Granted . . . Claim Against Non-Diverse Sales Rep Allowed

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It’s about time we got a Summer movie worthy of adult eyes.  Roger Ebert called the cinema a “machine for generating empathy.”  (The Life Itself biopic of Ebert is out now in theaters and available at home on demand.)  Not much empathy washes over us as we turn our eyes to Transformers or superheroes. All those explosions and flattened cities leave us feeling tired and hopeless, or feeling nothing at all.  Those films are about nothing.  The celluloid – or, more likely, the digital 0’s and 1’s – are full of sound and fury, signifying … well, you know.  It is life itself that offers thrills, mystery, and passion.  Where is that in the midst of the inevitable June-July CGI orgy?

It’s about time we got something to look at that said something about life itself.  And with Richard Linklater’s Boyhood, we’ve got it.  It’s about time.  Literally.  Linklater filmed a kid and his family over a 12 year period.  We see the actors age, which might sound like grim stuff, like watching our friends and, therefore, ourselves, slouch toward mortality.  But there is nothing grim about seeing a six year old emerge into adulthood.  That is life.  Dreams, experience, and memories collide and conspire to produce some luminescent thing that seems simultaneously transient and immortal.  It is more arresting and miraculous than cosmic warfare among the exoskeletons.  It stays with us long after the hobbits and avatars exit stage right.  As with Michael Apted’s Up series, or Linklater’s own Before series, Boyhood reminds us what life is about and what movies can do.  The film theorist Siegfried Kracauer said that the function of film is to do what no other art form can do – show light and movement.  We can see the leaves blowing in the wind, flaunting different shades of green as they flutter in sunlight.  We see things live and change in time.  Perhaps everything takes place under the eyes of eternity, but those are not our eyes.  Ours blink.  Ours close.

Time is the big subject today.   It always is.  The most important philosophical work of the 20th Century is not A Theory of Justice by that very nice Rawls fellow, but Being and Time by that not very nice Heidegger fellow.  Our favorite poem of the 20th Century, Auden’s “As I Walked Out One Evening,” is about time.  “Oh let not time deceive you/you cannot conquer time.”  Our favorite beach-reading book that we could not finish was A Brief History of Time.  Our favorite rock song is “A Day in the Life.”  Our favorite baseball team stinks because the star players all got old at once.  Father Time is undefeated.  Time marks victories and defeats.  Time marks births and deaths.  Time marks us.  Time also marks lawsuits.

We do not too often write about statute of limitations decisions.  They are fact-bound.  The people behind Seinfeld (which premiered 25(!)  years ago) vowed that their show would have no learning and no hugging.  Maybe we here at DDL won’t force a hug on you, but we do hope for some learning.  With statute of limitation decisions, we are usually unsure as to what we can learn from any particular case.   Not so with today’s case, Truitt v. Bayer, No. 13-CV-7811, (SDNY July 2, 2014).  A copy of the opinion can be found here.Continue Reading Knowledge of Injury is Enough to Start the Statute of Limitations

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(This post comes from the non-Dechert side of the blog.)

Like the court, we start at the end, with the knockout blow.  Here’s how the court set it up:

It is not mind-taxing to discern why Eckhardt [the plaintiff] shies from labeling his claims as products liability claims: A products liability claim against the Generic…

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We can’t decide whether Anastasi v. Wright Medical Tech., 2014 U.S. Dist. LEXIS 58467 (E.D. Mo. Apr. 28, 2014), is bad or just frustrating.  It might just feel bad.  The fact section takes you through a soul-crushing, “accepted as true” recitation of plaintiff’s allegations that seems a bit over the top. It goes on…

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It’s that time of year again, so we’d like to tell you the story of the two experts in Schronk v. Laerdal Med. Corp., 2013 Tex. App. LEXIS 15024 (Tex. Ct. App. Dec. 12, 2013), a litigation involving an allegedly defective external defibrillator device.  One was a causation expert, the other a defect expert. 

…

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About a year ago, we discussed precedent establishing that off-label use can be, and often is, the medical standard of care.  Conversely, that means that it could be considered medical malpractice not to prescribe certain off-label therapies.  All of a sudden, that issue has popped up again, with two cases in the last week, both dealing with the off-label use of drugs in the abortion context.

We stay away from politics on this blog – whether it’s the merits of Obamacare or the merits of  legal restrictions on medical abortion. But where legal questions associated with this sort of controversial issue impact matters relevant to drug/device defense, we will cautiously venture into such territory, as we did here (ACA could render medical monitoring cause of action unnecessary) and here (FDCA preemption in abortion litigation context).  This time, it’s off-label use.
We’ll polish off the lesser of the two off-label use decisions quickly.  In Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, ___ F. Supp.2d ___, 2013 WL 5781583 (W.D. Tex. Oct. 28, 2013) (“Abbott”), stay granted in part on other grounds, ___ F.3d ___, 2013 WL 5857853 (5th Cir. Oct.  31, 2013), an “off-label protocol” for terminating pregnancy using drugs rather than surgery was, as with the other off-label uses we discussed in our earlier post, determined to be the medical standard of care, and conversely, the FDA-approved intended use of the same key drug (mifepristone, also known as RU-486) was obsolete.  As the court stated:

Abortion-performing physicians have since developed a medication-abortion protocol using mifepristone that, although varying significantly from the FDA protocol, has become the de facto standard of care in Texas.  This protocol, or one substantially identical, accounts for the vast majority of medication abortions performed nationwide since 2007.  The new protocol [is] endorsed by the American College of Obstetricians and Gynecologists.

Id. at *7 (footnote omitted).  We omitted a footnote.  We now add it back in, because it is more relevant to our product liability defense-related concerns than most of the opinion:

Continue Reading A New Off-Label Use Hot Spot

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Years of throwing batting practice to Little League and Babe Ruth teams has revealed two things: (1) the only meaningful physical characteristic that we on the blog have in common with major-league pitchers is the presence of a rotator cuff that can be injured, and (2) physical therapists are very good at what they do.  While no amount of physical therapy will get our fastball to 90 mph – sadly, not even 70 mph anymore – it can fix your shoulder.

Physical therapists know what they’re doing.  They identify the muscle, joint, tendon or ligament that is injured, isolate the part that needs to be strengthened, and devise subtle exercises that work directly on those areas.  It’s amazing what they can accomplish with an elastic band and the right exercise.  They are proficient at instruction too, helpfully explaining the technique and even purpose of the exercise: “this exercise strengthens your infraspinatus thing-a-ma-job” or “this stretch will lengthen your subscapularis watcha-ma-call-it.”  This is no doubt due to their years of training and experience.  The court in Seifried v. The Hygenic Corp., 2013 Tex. App. LEXIS 9791 (Tx. Ct. App. Aug. 6, 2013), understood this:

Like doctors in the prescription drug situation, physical therapists are experienced in treating and caring for patients, are trained in and familiar with the use of resistance bands used for physical therapy, and supervise and monitor the patients as they use the bands. The therapists directly interact with the patient and provide direction and a personalized exercise regimen tailored to the particular needs of the patient.

Id. at *9.Continue Reading The Learned Intermediary Doctrine (Not Defense): It’s for Physical Therapists Too

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We have seen the news that FDA is preparing a proposed rule to change the regulations to permit generic drug manufacturers (ANDA holders) to update their labels based on post-approval information without waiting for the branded/NDA drug’s label to change.  This seems like a fairly obvious response to Mensing’s preemption of most generic drug labeling claims and the call to a legislative solution by various judges and commentators.

It is for another day whether FDA can actually offer a regulation that both undoes Mensing and makes enough sense within the statutory scheme that can it survive inevitable challenges.  In the meantime, we return to the gap in Mensing that some plaintiffs exploit.

As in many of the decisions on generic preemption and innovator liability over the last several years, Garza v. Wyeth LLC, No. 2:12-CV-00198, 2013 WL 329356 & 3293704 (S.D. Tex. June 28, 2013), involves allegations of “abnormal muscle movements” with long-term use of the generic prescription drug metoclopramide.  Like many of the decisions we have griped about, the plaintiff in Garza was permitted multiple amendments of her complaint, including one after the first set of motions to dismiss had been argued.  Those motions resulted in Garza v. Wyeth LLC, 2013 WL 878586 (S.D. Tex. March 7, 2013), where warning claims—the only type of claim permitted with a prescription drug under Texas law—against two generic manufacturers were preempted “as there are no allegations that their labels were inconsistent with the FDA-approved, name-brand drug labels.” Id. at *4.  The claims against two other generic manufacturers were not preempted because the current complaint alleged that they had failed to update their labels to match the branded labels.  Id.  The court also held that, to get past a motion to dismiss, the complaint need not allege the fraud-on-the-FDA exception to the statutory rebuttable presumption of adequacy for FDA-approved labels was met.  Id. at **4-5.  This followed from the fact that the complaint did not allege that the labels at issue had been approved; rather, it alleged that the same two generic manufacturers that ended up on the wrong side of the preemption decision had “failed to adhere to FDA label requirements.”  Setting aside whether plaintiffs would ever agree that approval of a drug’s label meant that the manufacturer had adhered to “FDA label requirements,” the March decision set the stage for the two in June.Continue Reading The Generic Preemption Door Stays Open, At Least Until The Facts Matter

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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