Last Friday we were treating a client to another stop on our ongoing Philly burger tour. (We know – it’s amazing we’re not big time rainmakers, right?) We agreed that the brioche bun was a marvel, while the patty was just so-so. We’ve had a few sandwiches where the outside bread-bits were way better than
Sometimes courts come out with rulings that surprise us, either pleasantly or unpleasantly. Sometimes courts are utterly predictable. There’s a little of both in the most recent chapter of the Iacangelo saga, which we’ve covered before here. Iacangelo v. Georgetown University, 2010 WL 4807082 (D.D.C Nov. 19, 2010). Plaintiffs brought suit on behalf of their daughter, who had been treated for arteriovenous malformation (AVM), an abnormal tangle of veins and arteries in her brain through which blood could not flow properly. The treating doctor used a method known as embolization, which involves using adhesives and other mechanisms to seal off the blood vessels feeding the AVM in the brain. In this case, the doctor used Histoacryl, a glue, and Lipiodol, a poppy seed-oil compound visible in X-rays. The FDA had not approved Histoacryl and Lipiodol for this treatment, either in combination or separately. Moreover, those substances could not be purchased from suppliers inside the United States. You might ask, “So what?” And you’d be pretty smart.
The treating doctor was named Watson, which accounts for the silly title of this post. In the old (1940s) Sherlock Holmes movies, Nigel Bruce played Dr. Watson as a dough-eye doofus, but in the original stories by Sir Arthur Conan Doyle, Watson was smart even if he lacked his buddy’s superhuman deductive powers. Dr. Watson was also something of a tough guy. He had been wounded in Afghanistan, and could handle a gun rather well. Perhaps most interestingly, in the first story, A Study in Scarlet, Conan Doyle wrote of Dr. Watson’s “experience of women which extends over many nations and three continents.” Hmmm. Maybe Jude Law’s recent portrayal of the good doctor wasn’t so far off the mark. And the words “good doctor” bring us back to the Iacangelo case.
The parties offered “wildly divergent accounts of what Dr. Watson told Ms. Kerris, her patients, and her husband.” 2010 WL 4807082 at *1. Since we’re at the summary judgment stage — for you non-lawyers, that means we don’t evaluate who’s telling the truth (although we have our suspicions) — we’ll go with plaintiffs’ allegations, including that Dr. Watson said that embolizations “had a 95% chance of success,” and that Dr. Watson never revealed that neither Histoacryl nor Lipiodol had been FDA approved.Continue Reading No, er, Kidding, Sherlock
The first really, really major post-Riegel preemption battle in the PMA device product litigation has been the Sprint Fidelis implantable cardiac defibrillator lead MDL, in which Medtronic moved to dismiss (that means on the pleadings – without discovery) against all claims on the strength of the express preemption clause as interpreted by Riegel.
Everybody defending PMA medical device defendants should read Parker v. Stryker Corp., 2008 U.S. Dist. Lexis 84938 (D. Colo. Oct. 22, 2008), granting a preemption-based Rule 12(b)(6) motion to dismiss.
Parker contains a number of useful holdings:
(1) Under Twombly a plaintiff can’t state a claim simply by alleging that the defendant “violated FDA
We really don’t see the purpose in a separate cause of action for breach of implied warranty in a case involving a prescription medical product. Warranty claims are for ham sandwiches and lawn chairs, where the term “merchantable” has some coherent meaning. Prescription medical products are just that – available only by a physician’s prescription.
Illinois, the Land of Lincoln, is also quite well known for abusive class action practice, including though by no means limited to certification of “drive by” class actions in certain downstate counties. We’ve also practiced in Cook County, and that venue can be tough on defendants too.
But things have been looking up in Illinois