Not too long ago, the Sixth Circuit – in an unpublished opinion in a below-the-radar case – held that a PMA medical device plaintiff had successfully threaded the preemption needle in Howard v. Sulzer Orthopedics, Inc., ___ Fed. Appx. ___, 2010 U.S. App. Lexis 12290, slip op. (6th Cir. June 16, 2010) (it’s also in pour device preemption scorecard). The one claim that the court held survived summary judgment was a negligence per se claim (more…)

In an (unfortunately) not-for-publication opinion, the 9th Circuit affirmed a defense summary judgment in Carson v. Depuy Spine, Inc., No. 08-56698, slip op. (9th Cir. Feb. 16, 2010). There’s nothing particularly interesting about the affirmance as to the manufacturing defect claim. But what the court had to say about plaintiff’s allegations concerning off-label promotion is music to our ears. First, there’s nothing improper about off-label (more…)

You might not want to read this post around mealtime. But it does offer food for thought on an old bete noire, negligence per se. Louie DePalma, a character in one of our all-time favorite sitcoms, Taxi, once hired a lawyer who advertised that if he lost a case, he’d “eat a bug”. That’s what happened in Gentry v The Hershey Co., et al., 2010 U.S. Dist. LEXIS 9278 (M.D. Tenn. Feb. 3, 2010). The Gentry case is a combination of CSI, Willy Wonka, and (more…)