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This is a quick-hit post as we head into the Independence Day holiday weekend.  The Southern District of West Virginia’s order this week in McNair v. Johnson & Johnson, No. 2:14-17463, 2015 WL 3935787 (S.D. W. Va. June 26, 2015), dismissed claims against the seller of an innovator drug for precisely the right reason: The defendant neither made nor sold the generic drug that the plaintiff ingested.  That is to say, there is no Conte-style “innovator liability” in West Virginia.

It seems obvious, doesn’t it?  It has been seven years since the California Court of Appeal issued its wrongly reasoned and wrongly decided opinion in Conte v. Wyeth, where the court held that a plaintiff who used a generic drug could sue the manufacturer of the listed version.  As we like to say, the court took the “product” out of product liability and held a company potentially liable for injuries allegedly caused by a product that it did not make and did not sell.  The late Roger Traynor and his colleagues on the California Supreme Court, who presaged strict product liability way back in 1944 in Escola v. Coca-Cola Bottling Co., must have rolled in their graves.

The Conte opinion has predictably become an outlier, and courts have rejected the opinion and its reasoning many times over, often expressly. (Check out our Innovator Liability Scorecard here and our survey of innovator liability here.)  As we reported here, the Alabama legislature abolished innovator liability just a few months ago, and we believe the California Supreme Court overruled Conte in Crane v. O’Neill, 53 Cal. 4th 335 (2011), where it held that a manufacturer has no duty to warn of hazards in another manufacturer’s product due to “foreseeability.”

Continue Reading No Innovator Liability: National Drug Code Saves the Day

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Two days ago, we posted on a West Virginia Supreme Court decision that told non-resident plaintiffs the closing time refrain “you don’t have to go home, but you can’t stay here.”  OK, we took some liberties there, but the non-resident plaintiffs who had gone shopping in a non conveniens forum could not stay even after poking around for two years.  We commented that the same result seemed dictated by last year’s Bauman decision on personal jurisdiction, which has been the subject of a few other posts, like this, this, and this.  Last week, another Wild and Wonderful court took the Bauman route to send 141 plaintiffs packing, although they will probably be back.

Starting in Texas state court with the sort of CAFA-defying, misjoindering gamesmanship that we often see in serial product liability and mass tort litigation, two cases presenting virtually identical motions to dismiss were eventually heard by the pelvic mesh MDL court in Huston v. Johnson & Johnson, No. 2:15-cv-01519, 2015 WL 1565648 (S.D.W. Va. Apr. 8, 2015), and Kraft v. Johnson & Johnson, No. 2:15-cv-01517, 2015 WL 1546814 (S.D.W. Va. Apr. 8, 2015).  Separated only to help the effort to stay out of federal court, one case had ninety-four plaintiffs with only three allegedly from Texas (or connected to Texas by their medical care), and the other had fifty-two plaintiffs with only two allegedly from Texas (or connected to Texas by their medical care).  Of course, each case had the obligatory one plaintiff from the defendant manufacturer’s home state.  The plaintiffs were linked together in that they were suing over the same or similar products and injuries, although with nothing suggesting it was appropriate for these plaintiffs to be together.  On the same schedule, with the fairly predictable procedural steps, these cases made their way to the MDL court to address the basic—and appropriately first addressed—issue of whether all these non-Texans could drag a non-Texas company into Texas state court without offending due process requirements of general personal jurisdiction.

If they could, then trials through the MDL court sitting by designation or after remand back from the MDL would be in the United States District Court for the Northern District for Texas.  If they could not, then each forum shopping plaintiff faced the choice of 1) not re-filing, 2) re-filing in her home jurisdiction (where there would be probably specific personal jurisdiction over the defendant), or 3) coming up with some other way to avoid removal.  The second option eventually gets the plaintiff back to the MDL court, but in a single plaintiff case and with any eventual trial in the federal district court whose boundaries cover where she lives.  The “but” part of the preceding sentence makes a difference to defendants, but there is also the larger issue of striking a blow against forum shopping in its various forms.  A manufacturer of drugs or medical devices (principal among potential defendants, at least here) is entitled to expect to face individual product liability lawsuits in its home state’s (state) courts or in the federal court in plaintiff’s home state (as of the relevant events) after a successful removal. Setting aside MDLs or state coordinated proceedings, other options typically mean some jurisdictional games have been played.

Continue Reading More Plaintiffs Go Home (Eventually And Based on Bauman)

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Last weekend, we saw the surprisingly effective “Danny Collins,” a new movie starring Al Pacino as an aging rock star wondering how the focus of his life would have changed if he’d known contemporaneously about an admiring letter from John Lennon that was not given to him until decades later.

The focus of today’s post might have changed if, instead of celebrating a correct appellate decision, we were blogging about the underlying order.  Those of us who practice in the mass tort arena are all too familiar with the forum-shopping propensities of plaintiffs’ lawyers and the inevitably-resulting dockets filled with plaintiffs who bear no relation to the states in which their cases are pending.  In State of West Virginia ex rel. J.C. v. Mazzone, 2015 W.Va. LEXIS 259 (W. Va.  Apr. 10, 2015), the West Virginia Supreme Court entertained a Motion for Writ of Prohibition seeking to prevent West Virginia’s Mass Litigation Panel from enforcing its October 2014 order dismissing petitioners –  20 Zoloft plaintiffs from numerous other states – on forum non conveniens grounds.  (The named plaintiffs were infants who had allegedly sustained birth defects; hence, the Court referred to them by their initials). Had we blogged about the Panel’s order, we would have pointed out that the Panel did not need to consider the convenience of the forum.  Under SCOTUS’s April 2014 decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), which we discussed here,  the fact that Pfizer was registered to do business in West Virginia did not confer general jurisdiction over it on West Virginia’s courts.  But forum non was the route the Panel chose and was the subject of the Court’s consideration.

The Court explained that “disputes over venue, such as a dismissal for forum non conveniens,” are exceptions to the “general proposition that prohibition does not lie to review discretionary rulings. . . .”  J.C., 2015 W.Va. LEXIS 259 at *14.  In considering a Motion for Writ of Prohibition, a court is to consider five factors, but “the third, the existence of clear error as a matter of law, should be given substantial weight.  Id. at *13.

Continue Reading Plaintiffs Go Home: West Virginia Supreme Court Affirms Forum Non Dismissals of Non-Resident Zoloft Plaintiffs

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Back in November, we exulted over the pelvic mesh MDL judge’s resurrection of West Virginia’s learned intermediary doctrine.   In Tyree v. Boston Scientific Corp., ___ F. Supp.3d ___, 2014 WL 5431993 (S.D.W. Va. Oct. 23, 2014), as we reported, the Court held that the learned intermediary doctrine governed a medical device manufacturer’s duty to

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We are pleased to have left the bullpen and joined the starting rotation of contributors to this blog. We will strive for the relevance and style our colleagues’ posts consistently display.

We adopted a Drug and Device Rescue Cat this week.  Her housemates, two Drug and Device Rescue Dogs, are poodle mixes, so we haven’t dealt with the issue of shedding since we last had cats, years ago.   We have discovered a nifty tool that claims to dramatically reduce the hair deposited on furniture and clothing, reminding us of our fondness for anything that strips away the clutter of useless underbrush and leaves only what is neat and firmly rooted.   And that is the (admittedly tenuous) segue to today’s case, in which the United States District Court for the Northern District of West Virginia bushwhacks through plaintiff’s detritus to arrive at a solid holding and a (mostly) tidy opinion.

In Muzichuck v. Forest Laboratories, Inc., No. 1:07-CV-16, 2015 U.S. Dist. LEXIS 5440 (N.D.W.Va. Jan. 16, 2015), the Court considered defendant’s Motion for Summary Judgment in a Lexapro suicide case.   Plaintiff, who opted out of the global Lexapro settlement, alleged that defendants, Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc. (“Forest”) failed to warn her decedent-husband and his prescribing physicians of the risk of suicide associated with the antidepressant Lexapro.

Continue Reading Opt-out Out of Court: Northern District of West Virginia Dispatches Lexapro Warnings Case

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Perhaps no case in the 8+ year history of the blog (well, maybe Wyeth v. Levine, 555 U.S. 555 (2009)), invoked greater ire from us than the atrocity in State ex rel. Johnson & Johnson v. Karl, 647 S.E.2d 899 (W. Va. 2007), making West Virginia the only state in the nation (still) not to apply the learned intermediary rule.  We excoriated Karl, of course, but even more, the decision prompted two of our early research-heavy posts, “In Defense of the Learned Intermediary Rule” (going over the rule’s justifications) and “Headcount: Who’s Adopted the Learned Intermediary Rule?” (one of our first 50-state surveys).  Needless to say, Karl also led our inaugural list as the worst drug/device decision of 2007.

In the wake of Karl, we followed a federal court’s attempt to assert Karl as West Virginia “public policy” and refuse to apply the learned intermediary rule to non-West Virginia plaintiffs who brought suit in West Virginia courts.  See Woodcock v. Mylan, Inc., 661 F. Supp.2d 602 (S.D.W. Va. 2009).  The West Virginia legislature squelched that initiative by passing W. Va. Code, §55-8-16, which explicitly provided otherwise.

We also pointed out that the West Virginia Supreme Court seemed to be having second thoughts about this whole learned intermediary thing in White v. Wyeth, 705 S.E.2d 828 (W. Va. 2010), since it cited learned intermediary principles as one reason for precluding actions under the state’s consumer protection statute against manufacturers of prescription medical products.

The intervention by a physician in the decision-making process necessitated by his or her exercise of judgment whether or not to prescribe a particular medication protects consumers in ways respecting efficacy that are lacking in advertising campaigns for other products.

Id. at 141 (citation and quotation marks omitted).

Continue Reading A Learned Intermediary Comeback in West Virginia

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The MDL court in West Virginia in the pelvic mesh litigation is continuing to issue pre-trial opinions.  Amongst those issued last week was an opinion addressing 24 motions in limine filed by plaintiffs and defendant, Boston Scientific Corporation (“BSC”).  Eghnayem v. Boston Scientific Corp., 2014 U.S. Dist. LEXIS 153284 (S.D.W. Va. Oct. 28, 2014).  We won’t address all the court’s rulings.  A number of them, as is almost always the case, were denied without prejudice to re-raising them at trial.  But some are either interesting or address issues frequently raised in mass tort trials.  So we discuss them here.

Exclusion of Material Safety Data Sheets (“MSDS”).  Admissibility of MSDS is often an issue in drug and device law litigation.  BSC sought to exclude the MSDS for polyethylene because it was not used in BSC’s mesh product.  They won – for obvious reasons.  The loophole that plaintiffs apparently tried to exploit was that certain BSC employees answered questions at their depositions about the polyethylene MSDS, incorrectly believing that it was the MSDS for a different substance – polypropylene – that is contained in BSC’s mesh product.  The court figured that out and excluded the polyethylene MSDS.

BSC also tried to exclude the MSDS for polypropylene, a material that is in its product.  No luck. BSC argued that a representative from the chemical company that made the polypropylene testified that the MSDS cautionary language was not placed there for scientific concerns.  The court found that testimony to be unclear and that the witness had actually testified that he didn’t know who drafted the MSDS or why it was written.  The court denied BSC’s motion, so BSC went one for two on its attempts to exclude the MSDS.  Id. at *5-8.

Continue Reading The West Virginia Pelvic Mesh Court Issues in Limine Rulings

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Today we have two summary judgment decisions recently issued out of one of the pelvic mesh litigation MDLs – the West Virginia federal court managing consolidated cases related to Boston Scientific’s mesh product.  See Tyree v. Boston Scientific Corp., 2014 U.S. Dist. LEXIS 148271 (S.D.W. Va. Oct. 17, 2014); Tyree v. Boston Scientific Corp., 2014 U.S. Dist. LEXIS 148371 (S.D.W. Va. Oct. 17, 2014).  The opinions are close to identical.  In each instance, with limited discussion, the court disposed of a number of the plaintiffs’ claims – e.g., manufacturing defect and fitness for a particular purpose – and allowed others to go forward to trial – e.g., failure to warn (remember, West Virginia has no learned intermediary doctrine) and implied warranty of merchantability.

But it’s the court’s decisions on plaintiffs’ express warranty claims that merit discussion.  The defendant argued – convincingly, you would think – that it was entitled to summary judgment on these warranty claims because the plaintiffs admitted that they never received or read the written materials (the Directions for Use) in which the warranty was allegedly made.  2014 U.S. Dist. LEXIS 148271, at *14-15; 2014 U.S. Dist. LEXIS 148371, at *13.  That argument sounds pretty good.

Continue Reading Express Warranty Claim Survives Summary Judgment under West Virginia Law in Mesh Litigation

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Don’t get too excited.  When we say a twitch, we mean it in its smallest sense.  A shudder, a tremor.  One blip followed by a long flat line.  We aren’t talking about resuscitation at this point.  But, just maybe West Virginia hasn’t signed a DNR order quite yet.

Ever since the West Virginia Supreme Court of Appeals refused to adopt the learned intermediary doctrine in State of West Virginia ex rel. Johnson & Johnson Corp. v. Hon. Mark A Karl, 220 W. Va. 463 (W. Va. 2007), we haven’t been shy about telling you all the ways that decision simply got it wrong (see here and here). But, ever the optimists, we sift and pan through West Virginia decisions like 19th century gold miners – looking for those little nuggets we can use to breathe life back into the learned intermediary doctrine.

We got one of those nuggets back in 2010 when the West Virginia Supreme Court of Appeals decided that there is no private cause of action under the West Virginia Consumer Credit and Protection Act (“CCPA”) for prescription drugs.  White v. Wyeth, 705 S.E. 2d 828 (W. Va. 2010). Nowhere in that decision will you find the words “learned intermediary.”  However, what that court did say was that when a plaintiff alleges affirmative misrepresentations, he must prove reliance and because for prescription drugs “the consumer cannot and does not decide what product to purchase”, id. at 838, plaintiffs can’t establish a causal connection.  If we were playing charades, we’d be making the “sounds like” gesture.  The court even went so far as to say that it is the physician who must “exercise[] judgment whether or not to prescribe a particular medication.”  Id.   So close.

Continue Reading A Twitch of Life for Learned Intermediary Doctrine in West Virginia

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We’re a bit too tired from going late into the evening watching the Oscars to say much of anything pithy today.  We’ll just complain.  Argo was a very good movie.  But Best Picture good?  Maybe, but maybe not.  It’s certainly not as shaky as last year’s pick, The Artist.  Cute and different doesn’t mean best.  Does anyone remember Crash winning best picture for 2005?  How the heck did that happen?  That might not even have been a good movie, no less best.  And Shakespeare In Love?  How does its victory over Saving Private Ryan look in retrospect?

Against these historic mistakes, the selection of Argo isn’t bad.  As we said, it really was a good movie.  A historically based movie is unquestionably good when it can get your teen-aged son to look at you with wide eyes during the last 20 minutes and say, “Man, this is intense.”  Its selection as Best Picture also created a second, “hey, can you believe Ben Affleck just won an Oscar” moment.  Those are always fun.  He’s gotten pretty good at making movies.  The Town was a good one too.  So we’re really not complaining about Argo.

This is more about Django Unchained.  We knew it never had a chance to win.  Quentin Tarantino makes unusual movies.  They’re loaded with violence, cursing and one odd circumstance piled on top of or backed into another.  And Tarantino himself sometimes comes off as a know-it-all when it comes to cinema.  But, man, what a move that was.  It must have been incredibly difficult to craft a movie about such a painful part of our history and yet have it at once be action-packed, terrifying, funny, exhausting, exhilarating, realistic, cartoonish, unpredictable and wonderfully predictable – and then to wrap it all up in a spaghetti western.  Who would even think to do such a thing, no less accomplish it?  For those of you who saw it, wasn’t it great to cheer Django on as he whipped the heck out of his former slave master?  We bet you’d never thought you’d get that experience at a movie.  Or wasn’t it a surreal movie-going moment to laugh along with the entire crowd as the KKK members complained about the guy who improperly cut the eye holes into their hoods?  And then be thrilled when Django shoots the KKK leader, Big Daddy (Don Johnson), off his horse.  Tarantino doesn’t make the type of movie that gets selected as Best Picture.  The Academy seems more comfortable throwing him a Best Screenplay award from time to time instead.  But you’ll likely never see another movie like that one again.  And you’ll definitely see more Argos.  Maybe Django Unchained should have been picked.

Who knows?  McConnell thinks a lot about these things and sees all the Best Picture nominees.  He’ll probably straighten this all out on Wednesday.

Now for your entertainment . . . . a third-party-payer case called Employer Teamsters-Local Nos. 175/505 Health and Welfare Trust Fund v. Bristol Myers Squibb Co., No. 2013 U.S. Dist. LEXIS 21589 (S.D. W.Va. Jan. 29, 2013).  As cases go, if you like courts dismissing plaintiffs’ claims for all sorts of reasons, this one should keep your attention.

Continue Reading A Solid Decision Dismissing Third Party Payer Claims — And a Mundane Oscar Decision