A recent case, Koger v. Synthes North America, Inc., 2009 WL 5110780 (D. Conn. 2009), underscores what should be a simple fact of life in product liability litigation involving orthopedic implants in particular, and implanted medical devices in general –plaintiffs shouldn’t expect to get anywhere with nothing more than a broken device.
That’s because the environment inside the human body is really hostile. (more…)
Don’t look now, but things have gotten a bit weird for Third-Party Payor (TPP) lawsuits in the District of Minnesota. It all started way back in 2006: Judge James Rosenbaum, presiding over the Medtronic Implantable Defibrillators MDL, denied a motion to dismiss a bevy of state-law claims brought by TPPs, including the usual litany of “economic loss” claims (sounding in consumer fraud, warranty, and unjust enrichment), (more…)
Plaintiffs usually allege thatdecisions regarding marketing, distributing and selling a drug or device – as well as interactions with the FDA – were made by the manufacturer at the corporate level. Of course, they argue that these corporate decisions then impacted the prescribers and plaintiffs at their home locales. As lawyers who defend mass torts, including putative class actions, we are used to litigating choice-of-law issues – and using the heavily (more…)
Last week we surprised even ourselves by including Judge Weinstein’s December 1 Zyprexa decision as one of top ten best decisions of 2009. That opinion concluded, albeit reluctantly, that Mississippi’s claims could not be adjudicated on a mass basis. Even Judge Weinstein acknowledges that sometimes (we would say more than sometimes) issues of causation, injury, and reliance need to be considered on an individual basis.
In a pair of (more…)
Good tidings and great cheer. Merry Christmas, Happy Hanukkah, Kool Kwanzaa, Super Solstice – whatever holiday you’re celebrating. What is there to celebrate? Well, for the moment we can all celebrate our top ten favorite drug and medical device decisions of 2009. While we don’t have a Supreme Court star at the top or our tree this year (Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), isn’t drug/device), there are still (more…)
Defendants went two for two sending forum-shopping non-resident plaintiffs back where they came from in New York this week. First, the Second Circuit, in a summary order, toldbunch of Austrian plaintiffs from a ski train fire to take their lawsuits back across the Atlantic.Ferk v. Omniglow Corp., slip op. (2d Cir. Dec. 21, 2009). Austrians injured in an Austrian accident suing in the United States were not entitled to “very little deference” (more…)
California Vioxx Class Action Slides Into The Sea
The endless see-saw that is the battle to impose reason on California consumer fraud class actions, just took a “see” (or is that a “saw”) in the direction of the good guys. Last week, in a to-be-published opinion, the California Court of Appeal affirmed the denial of class certification for Vioxx-related consumer and third party payor actions. In re Vioxx Class Cases, (more…)
It’s that time of year. Yeah, we know, it’s neither new nor original to do top ten lists – but it’s still fun. Except when it isn’t.
How much fun can it be to review all those times in the past year when we’ve been kicked in the teeth? That’s right. Here are our top (or should we say bottom) ten worst prescription drug/medical device decisions of 2009.
True, there are still a (more…)
Right now, it looks like Lilly’s got the “big mo” in the Zyprexa litigation. Hard on the heals of Judge Weinstein’s dismissal of the Mississippi AG action, Lilly chalked up another win yesterday in Philadelphia against a third party payor. Here’s a copy, Pennsylvania Employees Benefit Trust v. Eli Lilly & Co., April Term, 2007, No. 2970, slip op. (Pa. C.P. Philadelphia Co. Dec. 10, 2009).
It dismisses the fund’s express (more…)
We love it when our readers share good ideas with us. For one thing, it saves us the trouble of having to think up ideas ourselves. Today we’re sharing a couple of those with you.
Ted Heise, who’s at Cook Medical, was reading our post on methods of proving up FDA-related evidence. He took the time to let us know that, if the fact of FDA pre-market approval is what’s at issue, there’s another avenue of judicial (more…)