One side effect of the Judicial Panel on Multidistrict Litigation’s refusal to make the pain pump cases an MDL is that many different courts are ruling on the inadequacy of the pain pump complaints. The Western District of Pennsylvania took its turn last week in Kester v. Zimmer Holdings, Inc., 2010 U.S. Dist. LEXIS 59869 (W.D. Pa. June 16, 2010). The opinion contains a few useful rulings.

1. It is a commonplace that a defendant (more…)

We don’t subscribe to the theory of collective conscience, though when Julie Delpy talks about it in Waking Life it’s hard to disagree. Still, there are times when you find yourself repeatedly stumbling against the same idea in ways that seem beyond coincidence. Last week we praised a federal judge in New Jersey who sent Intron plaintiffs packing for want of standing. The week before, we blogged about potential TwIqbal misfires, including one painful (more…)

When mass tort plaintiffs seek to MDL their litigation, they usually get what they want. See our earlier post on Making Book on the MDL Panel. So it’s noteworthy when the U.S. Judicial Panel on Multidistrict Litigation declines to centralize proceedings. That happened for the second time in the pain pump litigation. In re: Ambulatory Pain Pump-Chondrolysis Products Liability Litigation, MDL No. 2139 (J.P.M.L. April 14, 2010).

The (more…)

Hardly a week goes by when we don’t blow a kiss or two at Twombly/Iqbal. Frankly, we can’t understand why everyone doesn’t share our enthusiasm. What’s wrong with requiring plausibility before subjecting someone to the monetary, stress, and reputational expenses of litigation? It’s enormously frustrating when courts express hostility to Twombly/Iqbal. Sometimes it’s even worse when courts pretend to follow Twombly/Iqbal but then apply them in such (more…)

Last year, the MDL Panel denied an attempt to centralize all of the federal “shoulder pain pump – chondrolysis” cases. See In re Shoulder Pain Pump – Chondrolysis Products Liability Litigation, MDL No. 1966 (JPML Aug. 11, 2008) (link here). So the cases have moved ahead individually in federal courts across America.

A couple of weeks ago, a defendant got good news in one of those cases. In Kilpatrick v. Breg,Inc., No. 08-10052-CIV-MOORE/SIMONTON, (more…)