Medical products ordering » State

Class Action Denial State Cheat Sheet

admin — Wed, 30 Jun 2010 20:56:00 +0000

Last week we gave you our federal class action denial cheat sheet [cite]. This week we’re posting a similar list of class action denials from state courts. It took some work, but we’ve been able to dig up certification denials from eleven different states. If you’ve got others, send them along.

With the Class Action Fairness Act moving most class action litigation to federal court, there may not be very many new entries on this list.

As with the federal cases, we’ve only included decisions that deny certification of everything. No split decisions on this list.

Rosenfeld v. A.H. Robins Co., 407 N.Y.S.2d 196 (N.Y.A.D. July 3, 1978) (Dalkon Shield – personal injury). Denial of statewide class certification affirmed. No predominance due to plaintiff-specific variations.Morrissy v. Eli Lilly & Co., 394 N.E.2d 1369 (Ill. App. Sept. 18, 1979) (DES – increased risk of injury). Denial of statewide class certification affirmed. No predominance due to plaintiff-specific variations.Rose v. Medtronics, Inc., 166 Cal. Rptr. 16 (Cal. App. June 19, 1980) (pacemaker – personal injury). Nationwide class certification denied. No predominance due to plaintiff-specific variations and differences in state law.Arthur v. Zearley, 895 S.W.2d 928 (Ark. April 10, 1995) (Orthoblock – personal injury). Certification of single hospital class reversed. No superiority due to plaintiff-specific variations.McCaster v. Becton Dickinson & Co., 1999 WL 34842201 (Ill. Cir. Jan. 11, 1999) (needles – personal injury). Statewide class certification denied. No predominance due to multiple products and plaintiff-specific variations, particularly affirmative defenses.Baker v. Wyeth-Ayerst Laboratories, 992 S.W.2d 797 (Ark. June 24, 1999) (fen-phen – personal injury, medical monitoring). Denial of statewide class certification affirmed. No predominance due to plaintiff-specific variations. No issue certification.Becton Dickinson & Co. v. Usrey, 57 S.W.3d 488 (Tex. App. Aug. 16, 2001) (needles – economic loss). Statewide class certification reversed. No predominance due to plaintiff-specific variations.Grant v. Becton Dickinson & Co., 2003 WL 21267787 (Ohio App. June 3, 2003) (needles – personal injury). Statewide class certification reversed. No commonality and typicality due to multiple products. No predominance due to plaintiff-specific variations. Class certification was reversed again on substantially the same grounds in Grant v. Becton Dickinson & Co., 2006 WL 2808164 (Ohio App. Sept. 21, 2006).Barnes v. Muscletech Research & Development, Inc., 2004 WL 5140060 (Fla. Cir. Nov. 12, 2004) (steroids – economic loss/consumer fraud). Statewide class certification denied. No commonality typicality, and adequacy due to conflicting theories. No predominance, manageability, and superiority due to plaintiff-specific variations.Howland v. Purdue Pharma L.P., 821 N.E.2d 141 (Ohio Dec. 15, 2004) (Oxycontin – personal injury). Certification of statewide class reversed. No commonality or predominance due to plaintiff-specific variations, particularly learned intermediary.Johnson v. Abbott Laboratories, 2004 WL 3245947 (Ind. Cir. Dec. 31, 2004) (Oxycontin – personal injury). Statewide class certification denied. No proper class definition and no numerosity due to plaintiff-specific variations. No commonality typicality, and predominance due to plaintiff-specific variations, particularly learned intermediary. No adequacy. No superiority. No medical monitoring injunctive class due to monetary damages.Hurtado v. Purdue Pharma Co., 2005 WL 192351 (N.Y. Sup. Jan. 24, 2005) (unpublished, in table at 800 N.Y.S.2d 347) (Oxycontin – personal injury). Statewide class certification reversed. No commonality due to plaintiff-specific variations. No typicality.Albertson v. Wyeth, Inc., 2005 WL 3782970 (Pa. C.P. May 3, 2005) (hormone replacement therapy – medical monitoring). Statewide class certification denied. No commonality and typicality due to plaintiff-specific variations, particularly causation.Johnson v. Ethicon, Inc., 2005 WL 3968820 (W. Va. Cir. May 17, 2005) (suture – personal injury). Statewide class action decertified. No proper class definition, no numerosity due to plaintiff-specific variations. No commonality, typicality, adequacy, and predominance due to conflicting theories and plaintiff-specific variations, particularly causation. No superiority. No punitive damages class.Wyeth, Inc. v. Gottlieb, 930 So.2d 635 (Fla. App. Feb. 15, 2006) (hormone replacement therapy – medical monitoring). Certification of statewide class reversed. No commonality, typicality, and adequacy due to conflicting theories and plaintiff-specific variations.Arons v. Rite-Aid, 2005 WL 975462 (N.J. Super. Law Div. March 23, 2005) (counterfeit Lipitor – economic loss). Nationwide class action denied. No commonality and predominance due to plaintiff-specific variations. No superiority due to multiple state laws.Dimich v. Med-Pro, Inc., 826 N.Y.S.2d 3 (N.Y.A.D. Nov 16, 2006) (counterfeit Lipitor – economic loss). Denial of nationwide and statewide class certification affirmed. No predominance due to plaintiff-specific variations. Affirming: Dimich v. Med-Pro Inc., 2005 WL 5960153 (N.Y..Sup. Nov. 18, 2005), reargument denied, 2005 WL 6062132 (N.Y. Sup. Nov. 18, 2005).International Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co., 929 A.2d 1076 (N.J. Sept. 6, 2007) (Vioxx – economic loss/consumer fraud). Certification of nationwide class reversed. No predominance due to plaintiff-specific variations, particularly causation. No fraud on the market. No superiority.Kleinman v. Merck & Co., 2009 WL 699939 (N.J. Super. Law Div. March 17, 2009) (Vioxx – economic loss/consumer fraud). Nationwide class certification denied. No predominance and typicality due to plaintiff-specific variations, particularly causation. No superiority. Reconsideration denied, Kleinman v. Merck & Co., 2009 WL 2481925 (N.J. Super. Law Div. Aug. 13, 2009).Clark v. Pfizer Inc., 990 A.2d 17 (Pa. Super. Jan 19, 2010) (Neurontin – economic loss). Decertification of statewide class affirmed. No commonality and typicality due to plaintiff-specific variations, particularly reliance and causation. No fraud on the market. Affirming, Clark v. Pfizer Inc., 2009 WL 1725953 (Pa. C.P. April 20, 2009).

druganddevicelaw.blogspot.com

On State Of The Art And Preemption

admin — Wed, 03 Mar 2010 21:18:40 +0000

We see so many cases alleging “illegal” promotion of off-label use that when we find one where the plaintiffs don’t make that sort of allegation, it makes us sit up and take notice. That’s the case with Meharg v. I-Flow Corp., No. 1:08-cv-184-WTL-TAB, slip op. (S.D. Ind. March 1, 2010). It’s a pain pump case – the allegations being that these pumps, which are used after shoulder surgery, continuously “infused” various types of anesthetics intended to (evidently successfully) reduce post surgical pain, but that the continuous exposure (or anything else a creative expert might come up with to blame on defendants) caused long-term deterioration (“chondrolysis”) of shoulder cartilage.

The pumps (which are FDA approved) are machines, and of course machines don’t care what you put in them – they’ll infuse it. Thus, the most interesting aspect of pain pump cases we’d seen prior toMeharg had to do with product identification. That is, plaintiffs have been trying to sue various drug companies without even being able to allege the the defendant’s drug was actually used. That’s a no-no, and it’s produced some favorable decisions reaffirming the rule that a plaintiff can only sue the manufacturer of a product s/he actually used. Timmons v. Linvatec Corp., ___ F.R.D. ___, 2010 WL 476661, at *3-4 (C.D. Cal. Feb. 9, 2010); Haskins v. Zimmer Holdings Inc., 2010 WL 342552, at *2 (D. Vt. Jan. 29, 2010); Gilmore v. DJO Inc., 663 F. Supp.2d 856, 860-61 (D. Ariz. 2009); Combs v. Stryker Corp., 2009 WL 4929110, at *2-3 (E.D. Cal. Dec. 14, 2009); Dittman v. DJO, LLC, 2009 WL 3246128, at *3 (D. Colo. Oct. 5, 2009); Sherman v. Stryker Corp., 2009 WL 2241664 at *5 (C.D. Cal. March 30, 2009). These pain pump cases are yet another reason why we like Twombly/Iqbal.

We expect that the pain pump litigation will continue producing decisions on weird points, because the plaintiffs will be suing the wrong defendants, the manufacturers of the drugs used in the pumps, over injuries that were caused, not so much by the drugs, but by how the drugs were continuously infused by the pumps – if there’s any causation at all, that is. In fact, we can almost guarantee it.

Why?

Preemption.

These pain pumps (at least in cases where we’ve seen it discussed) are Class III devices. That means the cases against the manufacturers aren’t very likely to succeed under Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), and the manufacturers will either get out on preemption, e.g., Wolicki-Gables v. Arrow International, Inc., 641 F. Supp.2d 1270 (M.D. Fla. 2009), or they’ll settle out cheap and take their chances with more attenuated – but at least not preempted – claims against the drug manufacturers. That’s what looks like happened in Meharg. The court mentions that the medical device claims had been settled. Slip op. at 3 n.4.

The claim in Meharg, which is essentially an attempt to blind-side a manufacturer with liability for an off-label use that it neither encouraged nor promoted, is one of those weird theories. But plaintiffs didn’t get very far.

Why?

The state of the art defense.

It appears from Meharg that the continuous infusion of these local anesthetics is a lot different than their occasional injection (or other application) on a one-shot (really bad pun) basis. Continuous infusion isn’t what these drugs were approved for, and since the off-label use wasn’t (even the plaintiffs agreed – which is saying something) anything the defendants made any attempt to encourage, the defendant didn’t know about side effects peculiar to off-label use.

Since it’s the state of the art defense, the key date is when the product was used. Here that’s technically the drug, not the device, but it doesn’t matter (it might in other cases).That date is February, 2006. Remember that fact.

We haven’t posted a lot about the state of the art defense on this blog, but when we did, we did so thoroughly. For a general discussion of why it’s not a good thing to hold drug/device manufacturers liable for not warning of risks that were unknown or undiscovered at the time of use, seehere.

In that post we included one of our 50-state surveys of the states that had adopted that state of the art defense in drug/device cases. We provided citations to cases from 42 states – check that – 40 states, Puerto Rico, and the District of Columbia. It so happens that Indiana was on that list:

Indiana: Ortho Pharmaceutical Corporation v. Chapman, 388 N.E.2d 541, 548 (Ind. App. 1979); Phelps v. Sherwood Medical Industries, 836 F.2d 296, 305-06 (7th Cir. 1987).Meharg is an Indiana law case. That’s why (one reason, anyway)the plaintiff in Meharg lost – umm … that is, because of the state of the art defense, not because we included Indiana in our blog post.

The court in Meharg went right to Chapman, and stated:

In Ortho Pharmaceutical Corp. v. Chapman, 388 N.E.2d 541, 548 (Ind. App. 1979), the Indiana Court of Appeals held that in the context of a prescription drug manufacturer, “the duty to warn. . .does not arise until the manufacturer knows or should know of the risk” and that “the standard of constructive knowledge is that of an expert in that particular field.” In cases such as this one that involve an off-label use of a prescription drug that is not endorsed or promoted by the manufacturer, the requisite knowledge of the risk is two-fold: the manufacturer must know (or be charged with knowledge of) both that the off-label use is occurring and that the off-label use carries with it the risk of the harm at issue–in this case, damage to cartilage.Meharg, slip op.at 4.

By relying on Chapman, the court quite consciously avoided a legal thicket that exists with respect to the duty to warn in cases of off-label use. Meharg, slip op. at 4-5 n.6. The courts have never really settled on an approach to off-label use generally, and the rationales run the gamut from no duty at all (on the theory the off-label use is a form of misuse) to no discernable difference from warning about labeled uses. The various approaches are well summarized in Blain v. Smithkline Beecham Corp., 240 F.R.D. 179, 194-95 (E.D. Pa. 2007), and if you want all the gory details, they’re in Bexis’ book at the end of 2.20[1].

The plaintiffs, it turns out, didn’t have much to support the weird unpromoted off-label use cause of action. That’s not to say they didn’t try, but in the end their own expert – the ubiquitous Suzanne Parisian – slit their throat. She (or rather the plaintiffs’ lawyers who undoubtedly spoon feed their experts the only things they’re allowed to look at) was unable to find anything in the medical literature before the product use in this case.

There were some very generalized statements about infusions of other products. Meharg, slip op. at 5-6. Not helpful, with this defendant. As we pointed out earlier, liability must bedefendant (and thus drug) specific. There were two pre-use studies that also didn’t help, because neither study’s authors suspected that the drug was implicated in the injury. Id. at 6. One of those studies, we note, the manufacturer probably couldn’t even have been disseminated to doctors under 21 C.F.R. 99.101(b)(v), because it only involved “one case.” This is off-label use land, remember, and the rules are different (but more on that later). In short, both of the studies that Dr. Parisian’s Declaration brought to the court’s attention reinforced the defendant’s point that nobody suspected the risk in question at the relevant time.

But that pales to what else Dr. Parisian stated. She expressly said in her declaration that the defendant should have taken steps to warn after it received certain specific “spontaneous reports.” Slip op. at 7. However, as the court pointed out, that was “something that occurred on June 9, 2006, after Meharg’s surgery.” Id. at 8 (emphasis original).

Oops. Dr. Parisian (or maybe counsel) really walked into one there.

That something was the state of the art defense. It’s nice, in litigation to have a ruling early on that the state of the art defense applies as a matter of law on a date certain – if you’re a defendant, that is.

Dr. Parisian tried to salvage things by putting on her lawyer hat (which she shouldn’t be allowed to do at all, but that’s anotherstory), and concocting an even weirder theory. She claimed there should be a duty towarn about possible risks of possibleoff-label uses. So, even if you’re not promoting an off-label use, Parisian would impose a duty to research them. The number of possible off-label uses is nigh on infinite, but of course that doesn’t bother a plaintiffs’ expert. It did, however, bother the court. Thus, we have this nifty language in the closing footnote of the opinion:
This “duty” does not exist under Indiana law. . . . Dr. Parisian urges a far broader duty–a duty to warn physicians that there might be a risk, but we don’t know yet because we (and the scientific community at large) haven’t studied it yet. Requiring such warnings regarding an off-label use in the absence of a known risk would be highly inefficient: it would drain the resources of drug companies; it would cause physicians to be inundated with such pseudo-warnings and risk distracting them from heeding warnings of actual risk; and it would add very little to the fact that physicians already know that if a use is omitted from a prescription drug’s label that use has not been tested sufficiently to demonstrate that it is safe and effective. Further, the Court notes that [plaintiff] expressly disavows the position that “simply saying that the use was not approved satisfies [defendant]’s duty,” and argues instead that[defendant] was required to provide “[a] clear cautionary statement setting forth the exact nature of the dangers involved.” The problem with that argument is the fact that the “exact nature of the dangers involved” simply was not known prior to Meharg’s surgery.Slip op. at 8 n.9 (emphasis original) (various citations omitted). So if you need a ringing rejection of a duty-to research claim – here it is. A plaintiff should not be allowed to slip the bounds of the state of the art simply by arguing a duty to conduct research. At some point the real world is simply the real world.

And now the preemption point – it isn’t in the opinion, but it came to us while we were writing about it. It goes back to the off-label angle. It so happens that the FDA is notoriously picky about what it allows manufacturers to say about off-label uses. We’ve written lots of First Amendment posts on that. Ordinarily, a drug’s labeling is strictlylimited to statements about its labeled uses. There is, however, an equivalent to the CBE requirement for strengthening off-label warnings. It’s found in 21 C.F.R. 201.57(c)(6)(i):

In accordance with 314.70 and 601.12 of this chapter, the labeling must be revised to include a warning about a clinically significant hazard as soon as there is reasonable evidence of a causal association with a drug; a causal relationship need not have been definitely established. A specific warning relating to a use not provided for under the “Indications and Usage” section may be required by FDA in accordance with sections 201(n) and 502(a) of the act if the drug is commonly prescribed for a disease or condition and such usage is associated with a clinically significant risk or hazard.(Emphasis added). Note the specific “may be required by FDA” language where widespread off-label uses are discussed. Where off-label use is concerned, the FDA wants to keep tight control of the labeling. If it were possible to add or “strengthen” off-label warnings CBE-style – that is, without prior FDA approval, there would be no reason to include the highlighted sentence in 201.57 at all.

Further, aside from warnings, the FDA has a whole section, 21 C.F.R. Part 99, that severely limits what manufacturers can legally disseminate about off-label uses, and it expressly requires prior FDA approval of this type of material.

In light of the FDA’s promulgation of a slew of formal regulations restricting drug (and device) manufacturers’ off-label statements we think, with respect to off-label uses, the sort of warning claim seen in Meharg implicates Levine’s caveat, “we have no occasion in this case to consider the pre-emptive effect of a specific agency regulation bearing the force of law.” Wyeth v. Levine, 129 S. Ct. 1187, 1203 (2009). The “specific” FDA regulations governing what a manufacturer can say about off-label uses expressly require prior FDA approval in all circumstances, and under Levine, that’s enough to make a pretty good preemption argument.

druganddevicelaw.blogspot.com

No State-Law Market For “Fraud On The Market”

admin — Mon, 25 Jan 2010 05:40:08 +0000

As we said last week, because it’s a Dechert case, we can’t comment directly on Clark v. Pfizer, Inc., 2010 WL 163583, slip op.(Pa. Super. Jan. 19, 2010). However, we were sufficiently inspired by what’s in the opinion that we thought this would be a good time to put in our two cents worth about one of the theories that theClark plaintiffs pursued: “fraud on the market.”

As defense lawyers, we want to do our part in killling off this pernicious import from federal securities law. So we decided to take an in-depth look at all of the the precedent that rejects application of a “fraud on the market” reliance presumption to state-law claims.

Just to make sure that everyone’s with us, briefly “fraud on the market” is a doctrine that waters down fraud (and, plaintiffs would like to say, other liability theories based on claimed misinformation) by presuming reliance in certain limited circumstances. SeeBasic, Inc. v. Levinson, 485 U.S. 224 (1988) (4 justice majority of 7-justice court). It’s not a state law claim -the Supreme Court has never applieda “fraud on the market” presumptionto state law even in securities cases.

The presumption arose because the Supreme Court bought a questionable proposition –that securities markets are “efficient” and “developed.” in other words, because there are so many participants in national stock markets, and those participants have such a voracious appetite for information, then anything about a particular stock is essentially instantaneously reflected in that stock’s price. Because of that (rather questionable) conclusion, any plaintiff in a securities fraud suit is “presumed” to rely on any material disinformation.

That’s the theory. In practice, however, what “fraud on the market” is really all about is class actions – reliance is ordinarily considered an individualized issue that’s kryptonite to the supposed “superman” of class actions . Without “fraud on the market,” there probably wouldn’t be very many securities class actions. Conversely, if plaintiffs could import the “fraud on the market” presumption of reliance into non-securities contexts – such as consumer fraud/common-law fraud/warranty litigation against our drug/device clients – an invasion of class actions would follow like night follows day.

It’s hardly surprising that, because we don’t want class actions certified against our clients, we’re not big fans of “fraud on the market,” and we want to remain see it tightly confined to securities litigation (indeed, abolished altogether, if we were kings of the world).

So farour side’sbeen pretty successful (as in Clark). In the interests of maintaining that success, we offfer here a state-by-state break down of the precedent refusing to adopt “fraud on the market” or similar presumed reliance theories to state-law (not federal – no RICO or antitrust cases here) causes of action– everything from product liability to consumer fraud to state securities and other statutes. A lot of the cases reading “In re [fill in the blank] Securities Litigation” are cases refusing to apply “fraud on the market” to pendent state law claims, whether or not the decision applied that theory to the federal causes of action.

We remind defense counsel to use this chart with appropriate caution. In particular, there’s some contrary precedent, maybe a dozen or two cases nationwide. It mostly falls into two categories: (1) interpretations of state securities law statutes, and (2) older federal cases, involving tag-along pendent state claims from the era of “certify first and worry later” that existed prior to the Supreme Court’s crackdown on class actions in the mid-1990s. Adhering to our policy of not doing the other side’s research for them, we don’t include it here. Just be aware that there are some stray adverse cases out there, and research accordingly.

Second, we don’t claim to have comprehensively researched presumed reliance theories other than “fraud on the market” – it took us bloody long enough as it is – but we’ve included whatever we happened to encounter along the way. There may well be other cases rejecting presumed reliance claims that we didn’t find if they didn’t use the magic words “fraud on the market.”

Everybody except lawyers can stop reading now, since what follows is really dry: a list of the cases, organized by the law of the jurisdiction, that have refused to apply presumed reliance theories (mostly “fraud on the market”), in state law actions of various kinds. We apologize for not categorizing them by the precise claims involved, but you defense lawyers out there have to have something to justify billing your clients for.

Here goes:

All (or a lot of different state’s) Law

Gariety v. Grant Thornton, LLP, 368 F.3d 356, 370 (4th Cir. 2004); In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 783 (3d Cir. 1995); In re Neurontin Marketing, Sales Practices & Products Liability Litigation, 618 F. Supp.2d 96, 111-12 (D. Mass. 2009); In re Neurontin Marketing, Sales Practices & Products Liability Litigation, 257 F.R.D. 315, 324 (D. Mass. 2009); Miller v. General Motors Corp., 2003 WL 168626, at *4 (N.D. Ill. Jan. 26, 2003); Poulos v. Caesars World, Inc., 2002 WL 1991180, at 9 n.10 (D. Nev. June 25, 2002); In re Ford Motor Co. Vehicle Paint Litigation, 182 F.R.D. 214, 221-22 (E.D. La. 1998); In re Newbridge Networks Securities Litigation, 926 F. Supp. 1163, 1175 (D.D.C. 1996); Kelley v. Mid-America Racing Stables, Inc., 139 F.R.D. 405, 410-11 (W.D. Okla. 1990); Moskowitz v. Lopp, 128 F.R.D. 624, 632 (E.D. Pa. 1989); In re Bexar County Health Facility Development Corp. Securities Litigation, 125 F.R.D. 625, 636 (E.D. Pa. 1989); Snider v. Upjohn Co., 115 F.R.D. 536, 542 (E.D. Pa. 1987); Rosenberg v. Digilog Inc., 648 F. Supp. 40, 43-44 (E.D. Pa. 1985) (can’t tell what state’s law); Seiden v. Nicholson, 69 F.R.D. 681, 686 (N.D. Ill. 1976). See “Tort Law – Indirect Reliance – New Jersey Supreme Court Rejects Fraud-On-The-Market Theory,” 114 Harv. L. Rev. 2550, 2550 (June 2001).

Alabama

Ex parte Household Retail Services, Inc., 744 So.2d 871, 880 n. 2 (Ala. 1999); Ex parte Exxon Corp., 725 So.2d 930, 933 n.3 (Ala. 1998).

Alaska

We didn’t find anything useful along these lines under Alaska law.

Arizona

Osuna v. Wal-Mart Stores, Inc., 2004 WL 3255430, at *6 (Ariz. Super. Dec. 23, 2004); Siemer v. Associates First Capital Corp., 2001 WL 35948712, at *23 (D. Ariz. March 30, 2001); Hoexter v. Simmons, 140 F.R.D. 416, 424 (D. Ariz. 1991); Persky v. Turley, 1991 WL 327434, at *10 (D. Ariz. Dec. 19, 1991).

Arkansas

Frelin v. Oakwood Homes Corp., 2002 WL 31863487, at *10 n.45 (Ark. Cir. Nov. 25, 2002).

California

Mirkin v. Wasserman, 858 P.2d 568, 580 (Cal. 1993); Whiteley v. Philip Morris Inc., 11 Cal. Rptr.3d 807, 854 (Cal. App. 2004); Stevens v. Owens-Corning Fiberglas Corp., 57 Cal. Rptr.2d 525, 541-42 (Cal. App. 1996); In re GlenFed, Inc. Securities Litigation, 60 F.3d 591, 592 (9th Cir. 1995) (applying California law); In re Actimmune Marketing Litigation, 614 F. Supp.2d 1037, 1054 (N.D. Cal. 2009); Gonzalez v. Proctor & Gamble Co., 247 F.R.D. 616, 624-25 (S.D. Cal. 2007); Gartin v. S & M NuTec LLC, 245 F.R.D. 429, 438 (C.D. Cal. 2007); Mathews v. Centex Telemanagement, Inc., 1994 WL 269734, at *8 (N.D. Cal. June 8, 1994); In re Cypress Semiconductor Securities Litigation, 836 F. Supp. 711, 714-15 (N.D. Cal. 1993); In re ZZZZ Best Securities Litigation, 1994 WL 675160, at*2 (C.D. Cal. May 25, 1994); In re Allergan Inc. Securities Litigation, 1993 WL 623321, at *12 (C.D. Cal. Nov. 29, 1993); In re Verifone Securities Litigation, 784 F. Supp. 1471, 1488 (N.D. Cal. 1992); In re Sunrise Technologies Securities Litigation, 1992 WL 359636, at *9 (N.D. Cal. Sept. 22, 1992); XOMA Corp. Securities Litigation, 1990 WL 357807, at *14 (N.D. Cal. Dec. 27, 1991); In re Keegan Management Co. Securities Litigation, 1991 WL 253003, at *9 (N.D. Cal. Sept. 10, 1991); Knapp v. Gomez, 1991 WL 214172, at *3 (S.D. Cal. June 25, 1991); In re Software Toolworks, Inc. Securities Litigation, 1991 WL 319033, at *6 (N.D. Cal. June 17, 1991); Flashman v. Singleton, 1991 WL 83963, at *5-6 (N.D. Cal. March 20, 1991); In re Ramtek Securities Litigation, 1991 WL 56067, at *8 (N.D. Cal., Feb. 4, 1991); In re 3Com Securities Litigation, 761 F. Supp. 1411, 1419 (N.D. Cal. 1990); In re Wyse Technology Securities Litigation, 1990 WL 169149, at *5 (N.D. Cal. Sept. 13, 1990); In re Ramtek Securities Litigation, 1990 WL 157391, at *3-4 (N.D. Cal. Sept. 7, 1990); Cytryn v. Cook, 1990 WL 128233, at *8 (N.D. Cal. July 2, 1990); Victor v. White, 1989 WL 108276, at *7 (N.D. Cal. July 26, 1989); In re Technical Equities Federal Securities Litigation, 1988 WL 147607, at *7 (N.D. Cal. Oct. 3, 1988).

Colorado

Farmers Insurance Exchange v. Benzing, 206 P.3d 812, 820-22 (Colo. 2009); Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1104 (Colo. 1995); Garcia v. Medved Chevrolet, Inc., ___ P.3d ___, 2009 WL 3765481, at *9 (Colo. App. Nov. 12, 2009); In re WorldCom, Inc. Securities Litigation, 2006 WL 557149, at *2 (S.D.N.Y. March 7, 2006) (applying Colorado law); Schwartz v. Celestial Seasonings, Inc., 185 F.R.D. 313, 317-18 (D. Colo. 1999); In re Synergen, Inc. Securities Litigation, 154 F.R.D. 265, 267 (D. Colo. 1994).

Connecticut

Contreras v. Host America Corp., 453 F. Supp.2d 416, 420 (D. Conn. 2006).

Delaware

Malone v. Brincat, 722 A.2d 5, 13 (Del. 1998); Gaffin v. Teledyne, Inc., 611 A.2d 467, 474-75 (Del. 1992); NACCO Industries, Inc. v. Applica Inc., ___ A.2d ___, 2009 WL 4981577, at *25 (Del. Ch. Dec. 22, 2009); Anglo American Security Fund, L.P. v. S.R. Global International Fund, L.P., 2006 WL 1494360, at *3 & n.41 (Del. Ch. May 24, 2006); Manzo v. Rite Aid Corp., 2002 WL 31926606, at *4 (Del. Dec.19, 2002), aff’d, 825 A.2d 239 (Del. 2003); In re WorldCom, Inc. Securities Litigation, 336 F. Supp.2d 310, 320 (S.D.N.Y. 2004) (applying Delaware law); Burekovitch v. Hertz, 2001 WL 984942, at *7 (E.D.N.Y. July 24, 2001) (applying Delaware law).

District of Columbia

Williams v. Purdue Pharma Co., 297 F. Supp.2d 171, 177 (D.D.C. 2003).

Florida

Kahler v. E.F. Hutton Co., 558 So.2d 144, 145 (Fla. App. 1990); Raulerson v. R.J. Reynolds Tobacco Co., 1997 WL 34628064 (Fla. Cir. March 3, 1997); Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999) (applying Florida law); Prohias v. Pfizer, Inc., 485 F. Supp.2d 1329, 1337-39 (S.D. Fla. 2007); Miller v. AstraZeneca Pharmaceuticals, LP, 223 F.R.D. 659, 664 (M.D. Fla. 2004); Jacobs v. Osmose, Inc., 2002 WL 34241682, at *4 (S.D. Fla. Jan. 3, 2002); Hamilton Partners, Ltd. v. Sunbeam Corp., 2001 WL 34556527, at *16 (S.D. Fla. July 3, 2001); Butterworth v. Quick & Reilly, Inc., 998 F. Supp. 1404, 1410-11 (M.D. Fla. 1998); Joy v. Brown & Williamson Tobacco Corp., 1998 WL 35229355, at *5 (M.D. Fla. May 8, 1998); Butterworth v. Quick & Reilly, Inc., 171 F.R.D. 319, 322 (M.D. Fla. 1997); Waters v. International Precious Metals Corp., 172 F.R.D. 479, 502 (S.D. Fla. 1996); In re Checkers Securities Litigation, 858 F. Supp. 1168, 1179 (M.D. Fla. 1994); In re Cascade International Securities Litigation, 840 F. Supp. 1558, 1583 (S.D. Fla. 1993); Tapken v. Brown, 1992 WL 178984, at *24 (S.D. Fla. March 13, 1992); In re Sahlen & Assoc., Inc. Securities Litigation, 773 F. Supp. 342, 371 (S.D. Fla. 1991).

Georgia

White v. BDO Seidman, LLP, 549 S.E.2d 490, 493 (Ga. App. 2001); Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1369 n.39 (11th Cir. 1997) (applying Georgia law); Next Century Communications Corp. v. Ellis, 214 F. Supp.2d 1366, 1371-72 (N.D. Ga.), aff’d, 318 F.3d 1023 (11th Cir. 2002); In re ValuJet, Inc., 984 F. Supp. 1472, 1481 (N.D. Ga. 1997); Wells v. HBO & Co., 813 F. Supp. 1561, 1569 (N.D. Ga. 1992).

Hawai’i

We didn’t find anything useful along these lines under Hawai’i law.

Idaho

Gerstein v. Micron Technology, 1993 WL 735031, at *9 (D. Idaho Jan. 9, 1993).

Illinois

Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 161-64 (Ill. 2002); Hartmann v. Prudential Insurance Co., 9 F.3d 1207, 1212 (7th Cir. 1993) (applying Illinois law); Oshana v. Coca-Cola Co., 472 F.3d 506, 514-15 (7th Cir. 2006); Scott v. GlaxoSmithKline Consumer Healthcare LP, 2006 WL 952032, at *3 (N.D. Ill. April 12, 2006); Amzak Corp. v. Reliant Energy, Inc., 2004 WL 1882482, at *6 n.2 (N.D. Ill. Aug. 19, 2004); Miller v. General Motors Corp., 2003 WL 168626, at *4 (N.D. Ill. Jan. 26, 2003); Tylka v. Gerber Products Co., 1999 WL 495126, at *13 (N.D. Ill. July 1, 1999); In re First Merchants Acceptance Corp. Securities Litigation, 1998 WL 781118, at *13 (N.D. Ill. Nov. 4, 1998); Gilford Partners, L.P. v. Sensormatic Electronics Corp., 1997 WL 757495, at *12 (N.D. Ill. Nov. 24, 1997); Gilford Partners, L.P. v. Sensormatic Electronics Corp., 1997 WL 570771, at *12 (N.D. Ill. Sept. 10, 1997); In re Soybean Futures Litigation, 892 F. Supp. 1025, 1060 (N.D. Ill. 1995); Searls v. Glasser, 1994 WL 523712, at *14 (N.D. Ill. Sept. 23, 1994); In re Information Resources, Inc. Securities Litigation, 1994 WL 124890, at *4 (N.D. Ill. April 11, 1994); Morse v. Abbot Laboratories, 756 F. Supp. 1108, 1112 (N.D. Ill. 1991); Good v. Zenith Electric Corp., 751 F. Supp. 1320, 1323 (N.D. Ill. 1990); Katz v. Comdisco, Inc., 117 F.R.D. 403, 412 (N.D. Ill. 1987).

Indiana

Kantner v. Merck & Co., 2007 WL 3092779 17-19 (Ind. Super. April 18, 2007); Zandman v. Joseph, 102 F.R.D. 924, 929 (N.D. Ind. 1984).

Iowa

We didn’t find anything useful along these lines under Iowa law.

Kansas

Porter v. Merck & Co., 2005 WL 3719630, at *3 (Kan. Dist. Aug. 19 2005); In re Cessna 208 Series Aircraft Products Liability Litigation, 2009 WL 274509, at *6 (D. Feb. 5, 2009); Antonson v. Robertson, 141 F.R.D. 501, 508 (D. Kan. 1991).

Kentucky

Mittman v. Rally’s Hamburgers, Inc., 278 F. Supp.2d 831, 843 (W.D. Ky. 2003) (we think so, anyway).

Louisiana

In re Rezulin Products Liability Litigation, 524 F. Supp.2d 436, 441 (S.D.N.Y. 2007) (applying Louisiana law).

Maine

Howard’s Rexall Stores, Inc. v. Aetna U.S. Healthcare, Inc., 2001 WL 501055, at *5 (D. Me. May 8, 2001); In re One Bancorp Securities Litigation, 136 F.R.D. 526, 533 (D. Me. 1991).

Maryland

Agbebaku v. Sigma Aldrich, Inc., 2003 WL 24258219, at *10 (Md. Cir. June 24, 2003); Cofield v. Lead Industries Ass’n, Inc., 2000 WL 34292681, at *10 (D. Md. Aug. 17, 2000); In re Medimmune, Inc. Securities Litigation, 873 F. Supp. 953, 968 (D. Md. 1995).

Massachusetts

Aspinall v. Philip Morris Cos., 813 N.E.2d 476, 490 n.23 (Mass. 2004); Young v. Deloitte & Touche, LLP, 2004 WL 2341344, at *5 (Mass. Super. Sept. 20, 2004); In re TJX Cos. Retail Security Breach Litigation, 246 F.R.D. 389, 395-96 (D. Mass. 2007); In re Fidelity/Apple Securities Litigation, 986 F. Supp. 42, 49 (D. Mass. 1997); Mallozzi v. Zoll Medical Corp., 1996 WL 392146, at *11 (D. Mass. March 5, 1996); Van de Velde v. Coopers & Lybrand, 899 F. Supp. 731, 738 (D. Mass. 1995); Wells v. Monarch Capital Corp., 1991 WL 354938, at *13 (D. Mass. Aug. 23, 1991); In Re Bank of Boston Corp. Securities Litigation, 762 F. Supp. 1525, 1536 (D. Mass. 1991); In re Jiffy Lube Securities Litigation, 1990 WL 10010982, at *10 (D. Md. Oct. 31, 1990).

Michigan

Krieger v. Gast, 197 F.R.D. 310, 320 (W.D. Mich. 2000); Yadlosky v. Grant Thorton, L.L.P., 197 F.R.D. 292, 299 (E.D. Mich. 2000); O’Neil v. Appel, 165 F.R.D. 479, 505 (W.D. Mich. 1996); In re Rospatch Securities Litigation, 1991 WL 427890, at *11 (W.D. Mich. July 22, 1991).

Minnesota

Thompson v. American Tobacco Co., 189 F.R.D. 544, 553 n.4 (D. Minn. 1999); In re Digi International, Inc. Securities Litigation, 6 F. Supp.2d 1089, 1104 (D. Minn. 1998), aff’d, 14 Fed. Appx. 714 (8th Cir. 2001); Bruzer v. Danek Medical, Inc., 1998 WL 1048225, at *7 (D. Minn. Oct. 1, 1998); In re SciMed Securities Litigation, 1993 WL 616692, at*7 (D. Minn. Sept. 29, 1993).

Missisippi

In re Zyprexa Products Liability Litigation, ___ F. Supp.2d ___, 2009 WL 4260857, at *56-60 (E.D.N.Y. Dec. 1, 2009) (applying Mississippi law); Coleman v. Danek Medical, Inc., 43 F. Supp.2d 629, 635 n.4 (S.D. Miss. 1998) (common-law fraud).

Missouri

We didn’t find anything useful along these lines under Missouri law.

Montana

We didn’t find anything useful along these lines under Montana law.

Nebraska

We didn’t find anything useful along these lines under Nebraska law.

Nevada

Picus v. Wal-Mart Stores, Inc., 256 F.R.D. 651, 659 (D. Nev. 2009); In re Stratosphere Corp. Securities Litigation, 1 F. Supp.2d 1096, 1123 (D. Nev. 1998).

New Hampshire

Mulligan v. Choice Mortgage Corp. USA, 1998 WL 544431, at *7 n.6 (D.N.H. Aug. 11, 1998); Rothwell v. Chubb Life Insurance Co., 191 F.R.D. 25, 31-32 (D.N.H. 1998).

New Jersey

International Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co., 929 A.2d 1076, 1088 (N.J. 2007); Kaufman v. i-Stat Corp., 754 A.2d 1188, 1195-96 (N.J. 2000); Lee v. Carter-Reed Co., L.L.C., 2009 WL 2475314, at *6 (N.J. Super. A.D. Aug. 14, 2009); Dabush v. Mercedes-Benz USA, LLC, 874 A.2d 1110, 1121 (N.J. Super. A.D. 2005); New Jersey Citizen Action v. Schering-Plough Corp., 842 A.2d 174, 178-79 (N.J. Super. A.D. 2003); Fink v. Ricoh Corp., 839 A.2d 942, 963-64 (N.J. Super. L.D. 2003); In re Neurontin Marketing, Sales Practices And Products Liability Litigation, 257 F.R.D. 315, 324 (D. Mass. 2009) (applying New Jersey law); Southeast Laborers Health and Welfare Fund v. Bayer Corp., 655 F. Supp.2d 1270, 1287-88 (S.D. Fla. 2009) (applying New Jersey law); McNair v. Synapse Group, Inc., 2009 WL 1873582, at *9 (D.N.J. June 29, 2009); In re Schering-Plough Corp. Intron/Temodar Consumer Class Action, 2009 WL 2043604, at *21-22 (D.N.J. July 10, 2009); Prohias v. Pfizer, Inc., 485 F. Supp.2d 1329, 1337-38 (S.D. Fla. 2007) (applying New Jersey law); In re Marsh & McLennan Companies, Inc. Securities Litigation, 501 F. Supp.2d 452, 495 (S.D.N.Y. 2006) (applying New Jersey law); Heindel v. Pfizer, Inc., 381 F. Supp.2d 364, 380-381 (D.N.J. 2004); Brown v. Philip Morris Inc., 228 F. Supp.2d 506, 518 (D.N.J. 2002); In re Rezulin Products Liability Litigation, 210 F.R.D. 61, 68 (S.D.N.Y. 2002) (applying New Jersey law); Morgan v. Markerdowne Corp., 201 F.R.D. 341, 347 (D.N.J. 2001); Weikel v. Tower Semiconductor Ltd., 183 F.R.D. 377, 400 n.12 (D.N.J. 1998); In re Crazy Eddie Securities Litigation, 802 F. Supp. 804, 812 (E.D.N.Y. 1992) (applying New Jersey law); Faktor v. American Biomaterials Corp., 1991 WL 336922, at *7 (D.N.J. May 28, 1991); Cammer v. Bloom, 711 F. Supp. 1264, 1298 (D.N.J. 1989); In re ORFA Securities Litigation, 654 F. Supp. 1449, 1460 (D. N.J. 1987).

New Mexico

Freedman v. Value Health, Inc., 2000 WL 630916, at *9 (D. Conn. March 24, 2000) (applying New Mexico law); In re Mesa Airlines Securities Litigation, 1996 WL 33419894, at *19 (D.N.M. May 31, 1996) (we think so, anyway).

New York

Baron v. Pfizer, Inc., 840 N.Y.S.2d 445, 448 (N.Y.A.D. 2007); Klein v. Robert’s American Gourmet Food, Inc., 808 N.Y.S.2d 766, 773 n.1 (N.Y.A.D. 2006); Ackerman v. Price Waterhouse, 683 N.Y.S.2d 179, 192 (N.Y.A.D. 1998); Strauss v. Long Island Sports, Inc., 401 N.Y.S.2d 233, 236-38 (N.Y.A.D. 1978); Stellema v. Vantage Press, Inc., 470 N.Y.S.2d 507, 510 (N.Y. Sup. 1983); Securities Investor Protection Corp. v. BDO Seidman, LLP, 222 F.3d 63, 71-73 (2d Cir. 2000); In re Pfizer Inc. Securities Litigation, 584 F. Supp.2d 621, 644 (S.D.N.Y. 2008); Hunt v. Enzo Biochem, Inc., 530 F. Supp.2d 580, 598-99 n.138 (S.D.N.Y. 2008); Prohias v. Pfizer, Inc., 485 F. Supp.2d 1329, 1337-38 (S.D. Fla. 2007) (applying New York law); Feinberg v. Katz, 2007 WL 4562930, at *6 (S.D.N.Y. Dec. 21, 2007); In re Marsh & Mclennan Companies, Inc. Securities Litigation, 501 F. Supp.2d 452, 495 (S.D.N.Y. 2006); Cromer Finance Ltd. v. Berger, 2003 WL 21436164, at *13 (S.D.N.Y. June 23, 2003); Waksman v. Cohen, 2002 WL 31466417, at *5 (S.D.N.Y. Nov 4, 2002); In re Motel 6 Securities Litigation, 161 F. Supp.2d 227, 232 (S.D.N.Y. 2001); Redtail Leasing, Inc. v. Bellezza, 1997 WL 603496, at *6-7 (S.D.N.Y. Sept. 30, 1997); Rowe v. Marietta Corp., 955 F. Supp. 829, 835 (W. D. Tenn.1996) (applying New York law); In re Motel 6 Securities Litigation, 1997 WL 154011, at *5-6 (S.D.N.Y. Apr. 2, 1997); In re ICN/Viratek Securities Litigation, 1996 WL 164732, at *12 (S.D.N.Y. April 9, 1996); Banque Arabe et Internationale D’Investissement v. Maryland National Bank, 850 F. Supp. 1199, 1221 (S.D.N.Y. 1994), aff’d, 57 F.3d 146 (2d Cir. 1995); Turtur v. Rothschild Registry International., Inc., 1993 WL 338205, at *6-7 (S.D.N.Y. Aug. 27, 1993); In re Crazy Eddie Securities Litigation, 802 F. Supp. 804, 812 (E.D.N.Y. 1992); Schultz v. Commercial Programming Unlimited Inc., 1992 WL 396434, at *4 (S.D.N.Y. Dec. 23, 1992); In re Nord Resources Corp. Securities Litigation, 1992 WL 1258516, at *9-11 (S.D. Ohio, Dec. 16, 1992) (applying New York law); In re Donahue Securities Inc., 2004 WL 3152763, at *5-6 (Bkrtcy. S.D. Ohio 2004) (applying New York law).

North Carolina

We didn’t find anything useful along these lines under North Carolina law.

North Dakota

We didn’t find anything useful along these lines under North Dakota law.

Ohio

In re Marsh & McLennan Companies, Inc. Securities Litigation, 501 F. Supp.2d 452, 495 (S.D.N.Y. 2006) (applying Ohio law); Graham v. American Cyanamid Co., 2000 WL 1911431, at *6 (S.D. Ohio Dec. 21, 2000), aff’d, 350 F.3d 496 (6th Cir. 203); Stavroff v. Meyo, 987 F. Supp. 987, 1002 (N.D. Ohio 1995), aff’d mem., 129 F.3d 1265 (6th Cir. 1997) (the affirmance makes clear this is Ohio law); In re Donahue Securities Inc., 2004 WL 3152763, at *6 (Bkrtcy. S.D. Ohio 2004).

Oklahoma

Bunch v. Kmart Corp., 898 P.2d 170, 171-72 (Okla. App. 1995).

Oregon

Beebe v. Pacific Realty Trust, 99 F.R.D. 60, 71 (D. Or. 1983).

Pennsylvania

Weinberg v. Sun Co., 777 A.2d 442, 446 (Pa. 2001); Clark v. Pfizer, Inc., ___ A.2d ___, 2010 WL 163583, at *6 (Pa. Super. Jan. 19, 2010); Aubrey v. Sanders, ___ Fed. Appx. ___, 2009 WL 3059055, at *2 (3d Cir. Sep. 24, 2009) (applying Pennsylvania law); Hunt v. United States Tobacco Co., 538 F.3d 217, 227-28 (3d. Cir. 2008); Peil v. Speiser, 806 F.2d 1154, 1163 n.1 (3d Cir. 1986) (applying Pennsylvania law); Heindel v. Pfizer, Inc., 381 F. Supp.2d 364, 380-381, 384-386 (D.N.J. 2004) (applying Pennsylvania law); Wallace v. Systems & Computer Technology Corp., 1997 WL 602808, at *24 (E.D. Pa. Sept. 23, 1997); In re Herley Securities Litigation, 161 F.R.D. 288, 292 (E.D. Pa. 1995); In re Westinghouse Securities Litigation, 832 F. Supp. 948, 989 (W.D. Pa. 1993), rev’d in part on other grounds, 90 F.3d 696 (3d Cir. 1996); Friedman v. Lansdale Parking Authority, 1993 WL 338174, at *7 (E.D. Pa. Aug. 30, 1993); In re Scott Paper Co. Securities Litigation, 142 F.R.D. 611, 617 (E.D. Pa. 1992); In re Atlantic Financial Federal Securities Litigation, 1990 WL 188927, at *6 (E.D. Pa. Nov. 28, 1990); Gavron v. Blinder Robinson & Co.,115 F.R.D. 318, 325 (E.D. Pa. 1987).

Rhode Island

We didn’t find anything useful along these lines under Rhode Island law.

South Carolina

Gunnells v. Healthplan Services, Inc., 348 F.3d 417, 435-36 (4th Cir. 2003) (applying South Carolina law); Pitten v. Jacobs, 903 F. Supp. 937, 952 (D.S.C. 1995).

South Dakota

We didn’t find anything useful along these lines under South Dakota law.

Tennessee

In re Sofamor Danek Group, Inc., 123 F.3d 394, 403-04 (6th Cir. 1997) (applying Tennessee law).

Texas

McManus v. Fleetwood Enterprises, Inc., 320 F.3d 545, 549 (5th Cir. 20 2003) (applying Texas law); Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315, 320-321 (5th Cir. 2002) (applying Texas law); In re Enron Corp. Securities, Derivative & ERISA Litigation, 284 F. Supp.2d 511, 644 (S.D. Tex. 2003); Gyarmathy & Assoc., Inc. v. TIG Insurance Co., 2003 WL 21339279, at *3 n.6 (N.D. Tex. June 3, 2003); McNamara v. Bre-X Minerals Ltd., 197 F. Supp.2d 622, 698 (E.D. Tex. 2001); Florida Dept. of Insurance v. Chase Bank National Ass’n, 2001 WL 124951, at *4-5 (N.D. Tex. Feb. 9, 2001), aff’d, 274 F.3d 924 (5th Cir. 2001); Griffin v. GK Intelligent Systems, Inc., 87 F. Supp.2d 684, 690 (S.D. Tex. 1999); Zuckerman v. Foxmeyer Health Corp., 4 F. Supp.2d 618, 628 (N.D. Tex. 1998) (since overruled on various other grounds by various cases); Steiner v. Southmark Corp., 734 F. Supp. 269, 279 (N. D. Tex. 1990), mod. on other grounds, 739 F. Supp. 1087 (N. D. Tex. 1990).

Utah

We didn’t find anything useful along these lines under Utah law.

Vermont

We didn’t find anything useful along these lines under Vermont law.

Virginia

Borow v. nVIEW Corp., 1994 WL 285458, at *2 n* (4th Cir. June 29, 1994) (in table at 27 F.3d 562) (adopting trial court opinion that’s not online anywhere) (applying Virginia law).

Washington

In re Metropolitan Securities Litigation, 2009 WL 36776, at *4-5 (E.D. Wash. Jan. 6, 2009).

West Virginia

Basham v. General Shale Products Corp., 1993 WL 65086, at *4 n. 4 (4th Cir. March 10, 1993) (in table at 989 F.2d 491) (applying West Virginia law).

Wisconsin

Staudt v. Artifex, Ltd., 16 F. Supp.2d 1023, 1031 (E.D. Wis. 1998).

Wyoming

We didn’t find anything useful along these lines under Wyoming law.

If you find that we “missed a spot,” let us know. We’ll add the case.

druganddevicelaw.blogspot.com

No State-Law Market For “Fraud On The Market”

admin — Sun, 24 Jan 2010 14:45:31 +0000

Here goes:

All (or a lot of different state’s) Law

Alabama

Ex parte Household Retail Services, Inc., 744 So.2d 871, 880 n. 2 (Ala. 1999); Ex parte Exxon Corp., 725 So.2d 930, 933 n.3 (Ala. 1998).

Alaska

We didn’t find anything useful along these lines under Alaska law.

Arizona

Arkansas

Frelin v. Oakwood Homes Corp., 2002 WL 31863487, at *10 n.45 (Ark. Cir. Nov. 25, 2002).

California

Colorado

Connecticut

Contreras v. Host America Corp., 453 F. Supp.2d 416, 420 (D. Conn. 2006).

Delaware

District of Columbia

Williams v. Purdue Pharma Co., 297 F. Supp.2d 171, 177 (D.D.C. 2003).

Florida

Georgia

Hawai’i

We didn’t find anything useful along these lines under Hawai’i law.

Idaho

Gerstein v. Micron Technology, 1993 WL 735031, at *9 (D. Idaho Jan. 9, 1993).

Illinois

Indiana

Kantner v. Merck & Co., 2007 WL 3092779 17-19 (Ind. Super. April 18, 2007); Zandman v. Joseph, 102 F.R.D. 924, 929 (N.D. Ind. 1984).

Iowa

We didn’t find anything useful along these lines under Iowa law.

Kansas

Kentucky

Mittman v. Rally’s Hamburgers, Inc., 278 F. Supp.2d 831, 843 (W.D. Ky. 2003) (we think so, anyway).

Louisiana

In re Rezulin Products Liability Litigation, 524 F. Supp.2d 436, 441 (S.D.N.Y. 2007) (applying Louisiana law).

Maine

Howard’s Rexall Stores, Inc. v. Aetna U.S. Healthcare, Inc., 2001 WL 501055, at *5 (D. Me. May 8, 2001); In re One Bancorp Securities Litigation, 136 F.R.D. 526, 533 (D. Me. 1991).

Maryland

Massachusetts

Michigan

Minnesota

Missisippi

Missouri

We didn’t find anything useful along these lines under Missouri law.

Montana

We didn’t find anything useful along these lines under Montana law.

Nebraska

We didn’t find anything useful along these lines under Nebraska law.

Nevada

Picus v. Wal-Mart Stores, Inc., 256 F.R.D. 651, 659 (D. Nev. 2009); In re Stratosphere Corp. Securities Litigation, 1 F. Supp.2d 1096, 1123 (D. Nev. 1998).

New Hampshire

Mulligan v. Choice Mortgage Corp. USA, 1998 WL 544431, at *7 n.6 (D.N.H. Aug. 11, 1998); Rothwell v. Chubb Life Insurance Co., 191 F.R.D. 25, 31-32 (D.N.H. 1998).

New Jersey

New Mexico

New York

North Carolina

We didn’t find anything useful along these lines under North Carolina law.

North Dakota

We didn’t find anything useful along these lines under North Dakota law.

Ohio

Oklahoma

Bunch v. Kmart Corp., 898 P.2d 170, 171-72 (Okla. App. 1995).

Oregon

Beebe v. Pacific Realty Trust, 99 F.R.D. 60, 71 (D. Or. 1983).

Pennsylvania

Rhode Island

We didn’t find anything useful along these lines under Rhode Island law.

South Carolina

Gunnells v. Healthplan Services, Inc., 348 F.3d 417, 435-36 (4th Cir. 2003) (applying South Carolina law); Pitten v. Jacobs, 903 F. Supp. 937, 952 (D.S.C. 1995).

South Dakota

We didn’t find anything useful along these lines under South Dakota law.

Tennessee

In re Sofamor Danek Group, Inc., 123 F.3d 394, 403-04 (6th Cir. 1997) (applying Tennessee law).

Texas

Utah

We didn’t find anything useful along these lines under Utah law.

Vermont

We didn’t find anything useful along these lines under Vermont law.

Virginia

Borow v. nVIEW Corp., 1994 WL 285458, at *2 n* (4th Cir. June 29, 1994) (in table at 27 F.3d 562) (adopting trial court opinion that’s not online anywhere) (applying Virginia law).

Washington

In re Metropolitan Securities Litigation, 2009 WL 36776, at *4-5 (E.D. Wash. Jan. 6, 2009).

West Virginia

Basham v. General Shale Products Corp., 1993 WL 65086, at *4 n. 4 (4th Cir. March 10, 1993) (in table at 989 F.2d 491) (applying West Virginia law).

Wisconsin

Staudt v. Artifex, Ltd., 16 F. Supp.2d 1023, 1031 (E.D. Wis. 1998).

Wyoming

We didn’t find anything useful along these lines under Wyoming law.

If you find that we “missed a spot,” let us know. We’ll add the case.

druganddevicelaw.blogspot.com

Sprint Fidelis – Strike Two (State Court Dismissal)

admin — Fri, 23 Oct 2009 16:26:22 +0000

In a decision that largely tracks the preemption rulings already reached (and currently on appeal) in the Sprint Fidelis MDL, see In re Medtronic Sprint Fidelis Leads Products Liability Litigation, 592 F. Supp.2d 1147 (D. Minn. 2009), the court in the Minnesota State Court parallel proceedings has likewise dismissed all of the claims before it on preemption grounds. Here’s the slip opinion.

Highlights:
Apparently the Minnesota Supreme Court has an appeal currently pending that presents the question whether to adopt the Twombly/Iqbal pleading standard. Slip op. at 16-17 n.9 (discussing Barr v. Capella University, No. A08-1367).Claims involving PMA supplements are preempted to the extent as claims involving an original device PMA. Slip op. at 20 n.11. A product recall does not invalidate either a device’s pre-market approval or that approval’s preemptive effect. Slip op. at 21-22.The changes being effected provisions for devices don’t preclude express preemption, because for state law to mandate what is a voluntary process under state law would be “different from or in addition to” federal warning requirements. Slip op. at 26.Express warranty claims predicated on the safety or effectiveness of a PMA device are preempted. Slip op. at 30-31.Fraud, misrepresentation, and consumer fraud claims would “retroactively question the soundness” of the FDA’s approval, and are therefore preempted. Slip op. at 31-32.”Derivative” claims for loss of consortium, medical monitoring, unjust enrichment, and Medicare Secondary Payer are preempted. Slip op. at 32-33.Plaintiffs haven’t alleged any unpreempted “parallel” claims because: (1) they are disguised private attempts to enforce the FDCA, which are impliedly preempted under Buckman; (2) there is no parallel state law claim for failure to follow the conditions of an FDA PMA; (3) there is no federal requirement to submit a CBE (it’s strictly voluntary); (4) claims challenging the sufficiency of a defendant’s submissions to the FDA are disguised fraud-on-the-FDA claims; (5) plaintiffs’ design claims would impose rigid specificity that FDA regulations do not; (6) nothing in the FDA’s regulations requires withdrawal of a device because an allegedly “safer” model was later approved; (7) there is no obligation to submit a PMA supplement immediately after learning of problems with an existing device; (8) certain alleged violations were not causally connected to any plaintiff’s injuries; (9) adulteration claims are disguised private attempts to enforce the FDCA; negligence per se claims are disguised private attempts to enforce the FDCA; (10) a statute that does not authorize a private cause of action cannot be the basis of a negligence per se claim under state law; and (11) the regulations subject to plaintiff’s negligence per se claims are only administrative requirements and do not prescribe standards of care owed to any individual. Slip op. at 33-42.

Congratulations to Medtronic and its litigation counsel, Ken Geller at Mayer Brown. Keep those preemption wins coming.

druganddevicelaw.blogspot.com

Medical Monitoring – Another 50-State Survey

admin — Wed, 15 Apr 2009 12:52:39 +0000

We’ve been doing some research in anticipation of the upcoming ALI meeting at which the Principles of the Law of Aggregate Litigation will be voted on (we hope ALI members interested in class actions and the like will come out, debate the issues, and vote), and in the spirit of cross-fertilization, we thought we’d share it with our readers. The only question we have is the format. We were impressed with reader response we had to the 50-state survey we did not too long ago on informal defense communication with treating physicians, so we’ve decided to present the medical monitoring issue in a similar fashion.

The questions before the house are what states have adopted medical monitoring, which have rejected it, and what quirks are there? Our research indicates that at present, the law is all over the lot. We count 13 jurisdictions that recognize medical monitoring, or where federal courts – in violation of what we think are proper Erie principles – have predicted that the jurisdiction would recognize medical monitoring in the absence of present injury. Some of these claims are more or less limited in scope, which we’ll discuss.

Opposing them are the federal common law and 21 other jurisdictions that either do not recognize medical monitoring where the plaintiff isn’t hurt, or where a federal court has made a prediction to that effect.

In the middle are four more states (including a couple of big ones) where different courts have reached different results on the question, and we can’t say with certainty what the answer is.

The remaining jurisdictions, as far as we’ve been able to tell, simply haven’t addressed medical monitoring as a separate cause of action where the plaintiff has no present injury.

As we warned the last time around, you get what you pay for, so don’t even think about using us as the be all and end all on this (or any other) subject. If you do, please see our disclaimer. What we’re doing here is the start, not the end, of relevant research.

Also, if you think we didn’t get your state right, please let us know. Show us that we’ve missed something and we’ll add it.

Federal Common Law

No way, no how. The Supreme Court has spoken on the issue, and medical monitoring without personal injury isn’t a viable theory of liability in those areas (such as railroad law) governed by federal common law. Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 441-44 (1997); seeNorfolk & Western Railway. Co. v. Ayers, 538 U.S. 135, 156-57 (2003) (reaffirming Metro-North in dictum); In re Hanford Nuclear Reservation Litigation, 534 F.3d 986, 1009-10 (9th Cir. 2008) (no medical monitoring with respect to nuclear radiation); Syms v. Olin Corp., 408 F.3d 95, 105 (2d Cir. 2005) (no medical monitoring as “response costs” under CERCLA). The federal common law doesn’t apply to drugs or devices, except on really unusual facts, but the Supreme Court being the Supreme Court, it’s pretty influential in the substantive policy debate, so we put it first.

Alabama

The Alabama Supreme Court has spoken, and Alabama does not include any independent claims for medical monitoring. Houston County Health Care Authority v. Williams, 961 So.2d 795, 811 (Ala. 2007); Hinton v. Monsanto Co., 813 So.2d 827, 830-31 (Ala. 2001).

Alaska

As far as we can tell, no Alaska court has ever ruled on medical monitoring as a separate cause of action.

Arizona

It’s only an intermediate appellate court, and it’s pretty old, but based on Burns v. Jaquays Mining Co., 752 P.2d 28, 33-34 (Ariz. App. 1987), review dismissed, 781 P.2d 1373 (Ariz. 1989), Arizona permits independent claims for medical monitoring, at least in a case asserting an environmental tort. Burns listed four elements: (1) the “significance and extent of exposure,” (2) the “toxicity of [the substance], [and] the seriousness of the [harm] … for which the individuals are at risk,” (3) the “relative increase” in risk “in those exposed,” and (4) “monitor[ing] the effects of exposure. . .is reasonable and necessary.” Id. at 33.

Arkansas

Our research indicates that no Arkansas court has ever decided one way or the other whether medical monitoring can be sought as a separate cause of action by someone with no other injury.

California

The California Supreme Court has recognizes medical monitoring as a remedy “when liability is established under traditional tort theories of recovery.” Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 822-23 (Cal. 1993). So medical monitoring in California doesn’t appear to be a completely independent cause of action. The other elements are: (1) “significance and extent of the plaintiff’s exposure”; (2) the substance’s “relative toxicity”; (3) “the seriousness of the diseases for which plaintiff is at an increased risk”; (4) the relative increase in the plaintiff’s chances of developing a disease as a result of the exposure” when compared to preexisting risk (both plaintiff’s and background); and (5) “the clinical value of early detection and diagnosis.” Id. at 863 P.2d at 823.

Colorado

A long time ago, a federal court predicted that Colorado would recognize an independent claim for medical monitoring for environmental torts. Cook v. Rockwell International Corp., 755 F. Supp. 1468, 1477 (D. Colo. 1991). The court listed four elements: (1) “significant[] expos[ure] to a proven hazardous substance through the tortious actions of defendant”; (2) “an increased risk of contracting a serious latent disease”; (3) “increased risk makes periodic diagnostic medical examinations reasonably necessary”; and (4) “procedures exist which make the early detection and treatment of the disease possible and beneficial.” Id. These elements were quoted from another case, so Cook isn’t 100% clear that these are the Colorado elements, but they’re the only ones given in the opinion. On a later appeal the, Tenth Circuit avoided the issue. Building & Construction Dept. v. Rockwell International Corp., 7 F.3d 1487, 1490 n.2 (10th Cir. 1993). That’s it. As far as we know, in 18 years no other Colorado court has followed Cook as a matter of state law.

Connecticut

Connecticut allows injury-free medical monitoring only in workers compensation. Doe v. City of Stamford, 699 A.2d 52, 55 & n.8 (Conn. 1997). Medical monitoring has not been recognized in other areas under Connecticut law. Bowerman v. United Illuminating, 1998 WL 910271, at *10 (Conn. Super. Dec. 15, 1998) (rejecting medical monitoring common law claim); cf.Martin v. Shell Oil Co., 180 F. Supp.2d 313, 323 (D. Conn. 2002) (commenting that issue is unresolved).

Delaware

The law in Delaware is confused. The Delaware Supreme Court refused to permit an asbestos-related medical monitoring claim in Mergenthaler v. Asbestos Corp., 480 A.2d 647, 651 (Del. 1984), but did not categorically shut the door. Very recently a non-Delaware federal court predicted that Delaware would allow medical monitoring under an unusual set of facts – seemingly by estoppel – where a defendant had admitted that monitoring was appropriate. There was neither an underlying tort, nor were any elements of medical monitoring discussed. SeeHess v. A.I. Dupont Hospital for Children, 2009 WL 595602, at *12-13 (E.D. Pa. March 5, 2009) (applying Delaware law); Guinan v. A.I. duPont Hospital for Children, ___ F. Supp.2d ___, 2009 WL 307019, at *17-18 (E.D. Pa. Feb. 6, 2009) (applying Delaware law). We blogged about the problems with Guinanhere.

District of Columbia

The very first court to permit medical monitoring absent actual injury was a federal “prediction” of District of Columbia law. Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 837-38 (D.C. Cir. 1984) (recognizing equitable remedy). Subsequently, the court in Witherspoon v. Philip Morris Inc., 964 F. Supp. 455, 467 (D.D.C. 1997) refused to extend medical monitoring to product liability actions.

Florida

Medical monitoring without present injury is recognized under Florida law as available in negligence, but not in strict liability. Petito v. A.H. Robins Co., 750 So.2d 103, 106-07 (Fla. App. 1999); Zehel-Miller v. Astrazenaca Pharmaceuticals, LP, 223 F.R.D. 659, 663-64 (M.D. Fla. 2004) (dismissing strict liability claim). The elements are: (1) exposure “greater than normal background levels”; (2) “to a proven hazardous substance”; (3) “caused by the defendant’s negligence”; (4) the “plaintiff has a significantly increased risk of contracting a serious latent disease”; (5) “a monitoring procedure exists that makes the early detection of the disease possible”; (6) that monitoring “is different from that normally recommended in the absence of the exposure”; and (7) the monitoring “is reasonably necessary according to contemporary scientific principles.” Petito, 750 So.2d at 106-07.

Georgia

The law in Georgia is limited to a federal court’s prediction that Georgia law would not allow independent medical monitoring claims. Parker v. Brush Wellman, Inc., 377 F. Supp.2d 1290, 1302 (N.D. Ga. 2005), aff’d in pertinent part, 230 Fed. Appx. 878, 883 (11th Cir. 2007).

Guam

A federal court predicted that Guam would recognize an independent claim for medical monitoring. Abuan v. General Electric Co., 3 F.3d 329, 334 (9th Cir. 1993). There have been no further developments in the ensuing decade and a half.

Hawaii

Hawaii is like Alaska. To our knowledge, no Hawaii court has ever ruled on medical monitoring as a separate cause of action.

Idaho

Idaho’s even more like Alaska. There’s no medical monitoring precedent either way in Idaho either.

Illinois

Courts in Illinois are all over the lot, and the state’s supreme court has not yet resolved the issue. Several federal district court opinions (not all in Illinois) have concluded that Illinois would recognize independent claims for medical monitoring. Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F. Supp.2d 833, 836 (N.D. Ill. 2008); Gates v. Rohm & Haas Co., 2007 WL 2155665, at *4-5 (E.D. Pa. July 26, 2007) (applying Illinois law); Muniz v. Rexnord Corp., 2006 WL 1519571, at *6-7 (N.D. Ill. May 26, 2006); Carey v. Kerr-McGee Chemical Corp., 999 F. Supp. 1109, 1119 (N.D. Ill. 1998). State courts, on the other hand, have been quite a bit more hesitant. SeeJensen v. Bayer AG, 862 N.E.2d 1091, 1100-1101 (Ill. App. 2007) (medical monitoring claims “lack merit”); Lewis v. Lead Industries Ass’n, Inc., 793 N.E.2d 869, 877 (Ill. App. 2003) (declining to permit a medical monitoring remedy as an independent equitable claim); Campbell v. A.C. Equipment Services Corp., 610 N.E.2d 745, 748 (Ill. App. 1993) (cautioning that this decision “should not be construed as recognizing” medical monitoring); seealsoGuillory v. American Tobacco Co., 2001 WL 290603, at *7 (N.D. Ill. 2001) (rejecting medical monitoring).

Indiana

Indiana law is also split. In Hunt v. American Wood Preservers Institute, 2002 WL 34447541, at *1 (S.D. Ind. July 31, 2002), and Johnson v. Abbott Laboratories, 2004 WL 3245947 (Ind. Cir. Dec. 31, 2004), the courts rejected independent medical monitoring claims. On the other hand, in Allgood v. General Motors Corp., 2005 WL 2218371, at *6-8 (S.D. Ind. Sept. 12, 2005), the court denied a motion to dismiss the same kind of claim. Needless to say, there’s been no definitive resolution in the state.

Iowa

There’s more law on gay marriage in Iowa than on medical monitoring. No Iowa court has recognized the latter (or rejected it).

Kansas

A federal court predicted that Kansas would not recognize an independent claim for medical monitoring in a product liability case. Burton v R.J. Reynolds Tobacco Co., 884 F. Supp. 1515, 1523 (D. Kan. 1995).

Kentucky

The Kentucky Supreme Court has rejected independent claims for medical monitoring absent present personal injury. Wood v. Wyeth-Ayerst Labs, 82 S.W.3d 849, 859 (Ky. 2002).

Louisiana

After the Louisiana Supreme Court recognized no-injury medical monitoring claims in Bourgeois v. A.P. Green Industries, Inc., 716 So.2d 355, 360 (La. 1998), the legislature stepped in and passed a statute that prohibits such claims – requiring that damages be “directly related to a manifest physical or mental injury or disease.” La. Civ. Code Ann. art. 2315 (1998).

Maine

No Maine court, to our knowledge, has ever decided whether or not independent medical monitoring claims are actionable in the absence of present injury.

Maryland

The Maryland Court of Appeals, the state’s highest court, affirmatively decided not to decide whether to recognize medical monitoring claims without actual injury in Philip Morris Inc. v. Angeletti, 752 A.2d 200, 251 (Md. 2000) (declining to determine whether a “novel tort theory” of medical monitoring would be adopted in Maryland). Since Angeletti no other Maryland court has boldly gone where Angeletti declined to go.

Massachusetts

There’s no law on medical monitoring as a separate claim without present injury in Massachusetts. In Anello v. Shaw Industries, Inc., 2000 WL 1609831, at *7 (D. Mass. March 31, 2000), the court dismissed an independent medical monitoring claim, but the motion was unopposed and based upon the court’s “view.” That’s pretty thin gruel, so we count Massachusetts as undecided.

Michigan

Michigan is the opposite of Massachusetts. In Henry v. Dow Chemical Co., 701 N.W.2d 684, 686 (Mich. 2005), the Michigan Supreme Court rejected any independent, no-injury claim for medical monitoring.

Minnesota

The Supreme Court hasn’t ruled, but several other courts have held that Minnesota law does not permit independent claims for medical monitoring without present injury. Bryson v. Pillsbury Co., 573 N.W.2d 718, 721 (Minn. App. 1998); Thompson v. American Tobacco Co., 189 F.R.D. 544, 551-52 (D. Minn. 1999), Paulson v. 3M Co., 2009 WL 229667 (Minn. Dist. Jan. 16, 2009); Palmer v. 3M Co., 2005 WL 5891911 (Minn. Dist. April 26, 2005).

Mississippi

Mississippi also says “no”. The state’s supreme court determined that independent claims for medical monitoring would not be permitted in Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 3-6, 9 (Miss. 2007).

Missouri

Missouri says “yes” – at least sometimes. In Meyer v. Fluor Corp., 220 S.W.3d 712, 717-18 (Mo. 2007), the supreme court permitted non-injury medical monitoring claims in environmental actions. There’s no specific list of elements, but the court allowed the claim where “the plaintiff has a significantly increased risk of contracting a particular disease relative to what would be the case in the absence of exposure,” and if “to a reasonable degree of medical certainty, [it is] necessary in order to diagnose properly the warning signs of disease.” Id. at 718. Shortly thereafter, in Ratliff v. Mentor Corp., 569 F. Supp.2d 926, 929 (W.D. Mo. 2008), a federal court determined that similar medical monitoring claims were not allowed in product liability actions.

Montana

There’s nothing we could find addressing no-injury medical monitoring in Montana. However, we saw a couple of law review articles citing an unavailable trial court slip opinion, Lamping v. American Home Products, Inc., No. DV-97-85786 (Mont. 4th Dist. Feb. 2, 2000), as permitting a claim. We haven’t called any state solely on the basis of an unpublished trial court opinion – let alone one that we can’t even review – so under the “thin gruel” rule, we’re leaving Montana in the “undecided” category.

Nebraska

Several federal courts have predicted that Nebraska wouldn’t permit independent claims for medical monitoring absent present injury. Trimble v. Asarco, Inc., 232 F.3d 946, 962-63 (8th Cir. 2000) (applying Nebraska law) (later abrogated on unrelated procedural grounds); Schwan v. Cargill, Inc., 2007 WL 4570421, at *1-2 (D. Neb. Dec. 21, 2007); Avila v. CNH America LLC, 2007 WL 2688613, at *1-2 (D. Neb. Sept. 10, 2007). The state courts are silent.

Nevada

The Nevada Supreme Court has rejected independent claims for medical monitoring in the absence of present injury. Badillo v. American Brands, Inc., 16 P.3d 435, 438-39 (Nev. 2001).

New Hampshire

There is no law we could find either way on independent, no-injury claims for medical monitoring in New Hampshire.

New Jersey

New Jersey was one of the first states to recognize a no-injury medical monitoring cause of action in an environmental actions, where:

the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary.
Ayers v. Township of Jackson, 525 A.2d 287, 312 (N.J. 1987). It still does. E.g., Mauro v. Raymark Industries, Inc., 561 A.2d 257, 264 (N.J. 1989) (asbestos product liability); (environmental). New Jersey also has a product liability statute that requires present injury. Thus medical monitoring is not available in product liability actions that don’t also qualify as environmental torts. Sinclair v. Merck & Co., 948 A.2d 587, 595 (N.J. 2008).

New Mexico

We couldn’t find any law, pro or con, concerning independent, no-injury medical monitoring claims in New Hampshire.

New York

New York’s highest court has never addressed no-injury medical monitoring, and it shows. The lower courts have split into three warring camps. One group generally recognizes independent medical monitoring claims without any injury requirement. Allen v. General Electric Co., 821 N.Y.S.2d 692, 694-95 (N.Y. A.D. 2006); Askey v. Occidental Chemical Corp., 477 N.Y.S.2d 242, 247 (N.Y. A.D. 1984) (as a remedy only); Acevedo v. Consolidated Edison Co., 572 N.Y.S.2d 1015, 1018 (N.Y. Sup. 1991); Gerardi v. Nuclear Utility Services, Inc., 566 N.Y.S.2d 1002, 1004 (N.Y. Sup. 1991); Abbatiello v. Monsanto Co., 522 F. Supp.2d 524, 538-39 (S.D.N.Y. 2007); Patton v. General Signal Corp., 984 F. Supp. 666, 674 (W.D.N.Y. 1997); Gibbs v. E.I. duPont de Nemours & Co., 876 F. Supp. 475, 478-790 (W.D.N.Y. 1995). Another body of law imposes a test that requires a “clinically-demonstrable presence of a toxin in the plaintiff’s body, or some other indication of a toxin-induced disease.” DiStefano v. Nabsico, Inc., 767 N.Y.S.2d 891, 891 (N.Y. A.D. 2003); Major v. Astrazeneca, Inc., 2006 WL 2640622, at *7 (N.D.N.Y. Sept. 13, 2006). Finally, another appellate New York court simply rejected an independent claim for medical monitoring. Abusio v. Consolidated Edison Co., 656 N.Y.S.2d 371, 372 (N.Y. A.D. 1997).

North Carolina

An appellate court in North Carolina refused to recognize an independent medical monitoring claim in an environmental contamination case, because that was “a task within the purview of the legislature and not the courts.” Curl v. American Multimedia, Inc., 654 S.E.2d 76, 81 (N.C. App. 2007); accordCarroll v. Litton Systems, Inc., 1990 WL 312969, at *51 (W.D.N.C. Oct. 29, 1990).

North Dakota

A federal court predicted that North Dakota would not recognize independent no-injury claims for medical monitoring. Mehl v. Canadian Pacific Railway Ltd., 227 F.R.D. 505, 518 (D.N.D. 2005).

Ohio

There’s surprisingly little law for such a big state. We know of one federal court predicting that Ohio law would recognize an independent claim for medical monitoring, but that was a while ago. Day v. NLO, Inc., 851 F. Supp. 869, 880-81 (S.D. Ohio 1994). Fifteen years later, no Ohio court has since squarely faced the issue.

Oklahoma

Stop the presses! A federal district court has just ruled that Oklahoma would not recognize medical monitoring because of the state’s present injury requirement. Cole v. ASARCO, Inc., 2009 WL 920581, at *4-5 (N.D. Okla. April 2, 2009).

Oregon

Of all the states whose supreme courts refuse to recognize independent claims for medical monitoring, Oregon is the most recent. Lowe v. Philip Morris USA Inc., 183 P.3d 181, 186-87 (Or. 2008).

Pennsylvania

Pennsylvania allows independent claims for medical monitoring in negligence, but not strict liability. Redland Soccer Club v. Deartment of the Army, 696 A.2d 137, 145 (Pa. 1997). The elements are: (1) exposure to “greater than normal background levels”; (2) the substance is “proven hazardous”; (3) exposure “caused by the defendant’s negligence”; (4) exposure caused “a significantly increased risk of contracting a serious latent disease”; (5) “a monitoring procedure exists that makes the early detection of the disease possible”; (6) the monitoring “is different from that normally recommended in the absence of the exposure”; and (7) the monitoring “is reasonably necessary according to contemporary scientific principles.” Id. at 145-46. Other Pennsylvania courts have held that Pennsylvania law does not permit medical monitoring claims in strict liability. Brown v. Dickinson, 2000 WL 33342381, at *1 (Pa. C.P. March 9, 2000); Barnes v. American Tobacco Co., 989 F. Supp. 661, 664 (E.D. Pa. 1997); (both requiring a “negligent” act); see alsoIn re Orthopedic Bone Screw Products Liability Litigation, 1995 WL 273597, at *9-10 (E.D. Pa. Feb. 22, 1995) (finding medical monitoring inappropriate in a product liability action not involving exposure to a toxic substance).

Puerto Rico

Nothing.

Rhode Island

Rhode Island is a little state – and on medical monitoring it has little law. There’s no Rhode Island precedent addressing independent, no-injury medical monitoring claims.

South Carolina

Not much law. One federal district court has predicted that South Carolina law would refuse to recognize independent claims for medical monitoring. Rosmer v. Pfizer, Inc., 2001 WL 34010613, at *5 (D.S.C. March 30, 2001).

South Dakota

Even less law. There’s no South Dakota precedent one way or the other concerning no-injury medical monitoring. No case applying South Dakota law has ever mentioned this type of cause of action.

Tennessee

Tennessee state courts haven’t addressed medical monitoring. Two federal courts have predicted that Tennessee law would not recognize an independent claim for medical monitoring. Bostick v. St. Jude Medical, Inc., 2004 WL 3313614, at *14 (W.D. Tenn. Aug. 17, 2004); Jones v. Brush Wellman, Inc., 2000 WL 33727733, at *8 (N.D. Ohio 2000) (applying Tennessee law). In Sutton v. St. Jude Medical S.C., Inc., 419 F.3d 568, 575 n.8 (6th Cir. 2005), the court dropped a footnote that Tennessee medical monitoring law was “murky” but some precedent (which doesn’t mention medical monitoring) “at least suggest[ed]” that such claims might be allowed. We don’t think so, because the Tennessee Supreme Court unanimously reaffirmed the present injury requirement after the cases cited in the Sutton footnote. Carroll v. Sisters of Saint Francis Health Services, Inc., 868 S.W.2d 585, 593-94 (Tenn. 1993).

Texas

Like Ohio, surprisingly little law for a big state. There’s one pretty recent federal district court decision predicting that Texas would not recognize an independent, no-injury claim for medical monitoring. Norwood v. Raytheon Co., 414 F. Supp.2d 659, 664-68 (W.D. Tex. 2006).

Utah

The Utah Supreme Court recognizes independent claims for no-injury medical monitoring in negligence. Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 978-80 (Utah 1993). The elements are: (1) “exposure”; (2) to a “toxic substance;” (3) that was “caused by the defendant’s negligence”; (4) and results in “increased risk”; (5) of “serious disease, illness, or injury”; (6) where “a medical test for early detection exists”; (7) “early detection is beneficial” in that “a treatment exists that can alter the course of the illness”; and (8) monitoring “has been prescribed by a qualified physician according to contemporary scientific principles.” Id. Utah currently holds the record for essential elements with eight.

Vermont

Almost twenty years ago, a federal court predicted that Vermont law would recognize an independent, no-injury claim for medical monitoring. Stead v. F.E. Myers Co., 785 F. Supp. 56, 57 (D. Vt. 1990). That’s all we know.

Virginia

A federal court of appeals held quite a while ago that Virginia would not recognize an independent claim for medical monitoring. Ball v. Joy Technologies, Inc., 958 F.2d 36 (4th Cir. 1991) (applying Virginia law). So far it hasn’t.

Virgin Islands

Virgin Islands law doesn’t recognize an independent claim for medical monitoring. Louis v. Caneel Bay, Inc., 2008 WL 4372941, at *5-6 (V.I. Super. July 21, 2008); Purjet v. Hess Oil Virgin Islands Corp., 22 V.I. 147, 153-54, (D.V.I. Jan. 8, 1986).

Washington

A few years back, a federal district court predicted that Washington would not allow independent claims for medical monitoring. Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601, 608-09 (W.D. Wash. 2001).

West Virginia

The West Virginia Supreme Court has recognized independent claims for medical monitoring, not limited to negligence. In re West Virginia Rezulin Litigation, 585 S.E.2d 52, 72-73 (W.Va. 2003); Bower v. Westinghouse Electric Co., 522 S.E.2d 424, 427 (1999). The elements are: (1) plaintiff has been “significantly exposed” “relative to the general population”; (2) to a “proven hazardous substance”; (3) by reason of “tortious conduct” (not just negligence) by the defendant; (4) which exposure has created “an increased risk of contracting a serious latent disease”; (5) which “makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure”; and (6) monitoring “exist[s] that make the early detection of a disease possible.” Bower, 522 S.E.2d at 426 (syllabus at 3).

Wisconsin

There’s no Wisconsin law on medical monitoring that we’ve been able to find.

Wyoming

Ditto.

To sum up:

Jurisdictions allowing no-injury medical monitoring claims: AZ, CA, CO, DC, FL, GM, MO, NJ, OH, PA, UT, VT, WV.

Jurisdictions not allowing no-injury medical monitoring claims: Federal, AL, CT, GA, KS, KY, LA, MI, MN, MS, NE, NV, NC, ND, OK, OR, SC, TN, TX, VA, VI, WA.

Jurisdictions with no law on no-injury medical monitoring claims: AK, AR, HI, ID, IA, ME, MD, MA, MT, NH, NM, PR, RI, SD, WI, WY.

Jurisdictions with divided law on no-injury medical monitoring claims: DE, IL, IN, NY.

druganddevicelaw.blogspot.com

The State-Of-The-Art Defense In Drug/Device Cases After Levine

admin — Fri, 20 Mar 2009 11:06:07 +0000

Wyeth v. Levine
, 2009 WL 529172 (U.S. March 4, 2009), was the Court’s discussion of the “changes being effected” regulation,
id.
at *7-8, which in turn depended on the existence of either “newly acquired information” or “new analyses of previously submitted data.”
Id.
at *7. Factually, there wasn’t much of a record, so the Court held, essentially, that the defendant hadn’t proven the negative – that an analysis of twenty “incidents” (we’d guess adverse drug experience reports, but the opinion doesn’t specify) wouldn’t have yielded “new” information upon which a CBE submission could have been based.
Id.
at *8 (“[defendant] could have analyzed the accumulating data and added a stronger warning”).
To us, all this emphasis on “newness” suggests the likelihood that state-of-the-art issues will see increased play in prescription drug product liability litigation after
. Since we’ve been blogging, the state-of-the-art defense in prescription drug litigation hasn’t been all that hot of a topic. In terms of recent cases, there’s been the Maryland high court decision in
Gourdine v. Crews
, 955 A.2d 769, 781 (Md. 2008), which discussed state-of-the-art issues as a reason for deciding that negligence and strict liability weren’t all that different, and the trial court decision in
Totterdale v. Lederle Laboratories
, 2008 WL 972657 (W. Va. Cir. March 19, 2008), which rejected some sort of weird duty to develop a safer design more quickly than the state of the art actually advanced. In short, not a whole lot on the subject recently.
That’s likely to change, so we thought we’d stay ahead of the curve and provide our readers with the lay of the land. The state-of-the-art defense isn’t a hard one to understand. It’s the rather self-evident proposition that a defendant shouldn’t be liable for not warning about something (usually, but not necessarily, a product risk) that hasn’t been discovered or invented yet. That’s straightforward enough, and as long as product liability cases were brought under the “reasonable man” standard of negligence, there wasn’t any significant dispute over this requirement. It wasn’t “reasonable” to expect a defendant to know the unknowable.
With the advent of strict liability, things changed, and there was a good deal of agitation – at least on the academic front – that strict liability wasn’t really “strict” if defendants could escape liability because science hadn’t yet discovered the causal link that the plaintiff was asserting. Some courts bought the argument in some circumstances, most frequently in asbestos cases. Where such rulings were broad enough, they tended to create legislative backlash, as happened in New Jersey.
N.J.S.A. 2A:58C-3a(1) (“state of the art” a complete defense).
Drugs have always been treated more carefully by the law than things that go clank, and courts have been very leery of tinkering with the state-of-the-art defense in a field so dependent upon advances in scientific knowledge as prescription drugs. State of the art was the issue that prompted the California Supreme Court essentially to exempt prescription drugs from strict liability in
Brown v. Superior Court
, 751 P.2d 470 (1988):
Thus far the courts have tended to hold the manufacturer to a high standard of care in preparing and testing drugs of unknown potentiality and in giving warning; but in the absence of evidence that this standard has not been met, they have refused to hold the maker liable for unforeseeable harm.
Id.
at 479 (reaffirming state-of-the-art defense in design defect context).
For these same reasons of policy, we reject plaintiff’s assertion that a drug manufacturer should be held strictly liable for failure to warn of risks inherent in a drug even though it neither knew nor could have known by the application of scientific knowledge available at the time of distribution that the drug could produce the undesirable side effects suffered by the plaintiff.
Id.
at 480.
There are lots of rationales for why drug companies (and device and vaccine makers, too) shouldn’t be liable for not warning about scientifically unknown risks or not using some design that hasn’t been invented yet. The Illinois Supreme Court, years ago, summed them up well: to “hold the manufacturer liable for failure to warn of a danger of which it would be impossible to know based on the present state of human knowledge would make the manufacturer the virtual insurer of the product.”
Woodill v. Parke Davis & Co.
, 402 N.E.2d 194, 199 (Ill. 1980). A manufacturer is not required to be “clairvoyant,” but rather, its judgments are evaluated “as of the time the product is distributed to the plaintiff.”
Toner v. Lederle Laboratories
, 732 P.2d 297, 306 (Idaho 1987).
The thin judicial support for a hindsight approach to the duty to warn is easily explained. The goal of the law is to induce conduct that is capable of being performed. This goal is not advanced by imposing liability for failure to warn of risks that were not capable of being known.
Vassallo v. Baxter Healthcare Corp.
, 696 N.E.2d 909, 922-23 (Mass. 1998).
For all of these reasons, we believe that the state-of-the-art defense dovetails with the Supreme Court’s evaluation of the prerequisites for a CBE submission in
. If, at the relevant time, the warning in question would not have supported common-law liability under the state-of-the-art defense, then there’s no factual basis for a CBE submission under the relevant FDA regulation. Where a CBE submission is not possible under the facts, then that’s one route to the “clear evidence that the FDA would not have approved a [label] change” that
, 2009 WL 529172, at *9, stated would support preemption. The state of the art defense cases thus provide a well-established body of law, and a reasonably numerous collection of factual analogies for dealing with the knotty question of whether there was insufficient “new” information for the FDA to allow a CBE submission, and thus for the application of preemption.
Shanks v. Upjohn Co.
, 835 P.2d 1189, 1200 (Alaska 1992);
Polley v. Ciba-Geigy Corp.
, 658 F.Supp. 420, 421 (D. Alaska 1987).
Gaston v. Hunter
, 588 P.2d 326, 340 (Ariz. App. 1978).
DeLuryea v. Winthrop Laboratories
, 697 F.2d 222, 229 (8th Cir. 1983).
Carlin v. Superior Court
, 920 P.2d 1347, 1350-51 (Cal. 1996);
Brown v. Superior Court
, 751 P.2d 470, 480-81 (Cal. 1988);
Valentine v. Baxter Healthcare Corp.
, 81 Cal. Rptr.2d 252, 263 (Cal. App. 1999);
Rosburg v. Minnesota Mining & Manufacturing Co.
, 226 Cal. Rptr. 299, 305-06 (Cal. App. 1986);
Fogo v. Cutter Laboratories, Inc.
, 137 Cal. Rptr. 417, 422-23 (Cal. App. 1977);
Carmichael v. Reitz
, 95 Cal. Rptr. 381, 404 (Cal. App. 1971);
In re Guidant Corp. Implantable Defibrillators Products Liability Litigation
, 2007 WL 2023569, at *2 (D. Minn. July 6, 2007).
Belle Bonfils Memorial Blood Bank v. Hansen
, 665 P.2d 118, 123 (Colo. 1983).
Vitanza v. Upjohn Co.
, 778 A.2d 829, 836 (Conn. 2001);
Tomer v. America Home Products Corp.
, 368 A.2d 35, 38 (Conn. 1976);
LaMontagne v. E.I. Du Pont De Nemours & Co.
, 41 F.3d 846, 859 (2d Cir. 1994);
Basko v. Sterling Drug, Inc.
, 416 F.2d 417, 426 (2d Cir. 1969).
McNeil Pharmaceutical v. Hawkins
, 686 A.2d 567, 578 (D.C. 1996).
E.R. Squibb & Sons, Inc. v. Farnes
, 697 So.2d 825, 828 (Fla. 1997);
Bailey v. Janssen Pharmaceutica, Inc.
, 2006 WL 3665417, at *4 (S.D. Fla. Nov. 14. 2006).
Ontai v. Straub Clinic & Hospital, Inc.
, 659 P.2d 734, 743 (Haw. 1983).
Toner v. Lederle Laboratories
, 732 P.2d 297, 306-07 (Idaho 1987).
Martin v. Ortho Pharmaceutical Corp.
, 661 N.E.2d 352, 354 (Ill. 1996);
Woodill v. Parke Davis & Co.
, 402 N.E.2d 194, 198-99 (Ill. 1980);
Needham v. White Laboratories, Inc.
, 847 F.2d 355, 357-58 (7th Cir. 1988);
McMahon v. Eli Lilly & Co.
, 774 F.2d 830, 835 (7th Cir. 1985);
Martinkovic v. Wyeth Laboratories, Inc.
, 669 F.Supp. 212, 215 (N.D. Ill. 1987).
Ortho Pharmaceutical Corporation v. Chapman
, 388 N.E.2d 541, 548 (Ind. App. 1979);
Phelps v. Sherwood Medical Industries
, 836 F.2d 296, 305-06 (7th Cir. 1987).
Moore v. Vanderloo
, 386 N.W.2d 108, 116 (Iowa 1986);
Brazzell v. United States
, 880 F.2d 84, 86-87 (8th Cir. 1989).
Savina v. Sterling Drug, Inc.
, 795 P.2d 915, 926-27 (Kan. 1990);
Tetuan v. A.H. Robins Co.
, 738 P.2d 1210, 1227 (Kan. 1987);
Wooderson v. Ortho Pharmaceutical Corp.
, 681 P.2d 1038, 1057, 1062-64 (Kan. 1984).
: La.Rev. Stat. Ann. 9:2800.59(B);
Cauvin v. Sisters of Mercy Health System, Inc.
, 818 So.2d 833, 835 (La. App. 2002);
Kinney v. Hutchinson
, 468 So.2d 714, 718 (La. App. 1985);
Miller v. Upjohn Co.
, 465 So.2d 42, 45 (La. App. 1985);
Stahl v. Novartis Pharmaceuticals Corp.
, 283 F.3d 254, 272 n.11 (5th Cir. 2002);
Williams v. Ciba-Geigy Corp.
, 686 F.Supp. 573, 575 (W.D. La. 1988),
, 864 F.2d 789 (5th Cir. 1988).
Porter v. Pfizer Hospital Products Group, Inc.
, 783 F.Supp. 1466, 1475 (D. Me. 1992).
Gourdine v. Crews
, 955 A.2d 769, 781 (Md. 2008);
Miles Laboratories, Inc. v. Doe
, 556 A.2d 1107, 1121-22 (Md. 1989);
Doe v. Miles Laboratories, Inc.
, 927 F.2d 187, 191-93 (4th Cir.1991);
Chambers v. G.D. Searle & Co.
, 441 F.Supp. 377, 381-82 (D. Md. 1975),
, 567 F.2d 269 (4th Cir. 1977).
Vassallo v. Baxter Healthcare Corp.
, 696 N.E.2d 909, 923-24 (Mass. 1998);
Kelly v. Wyeth
, 2007 WL 1302589, at *7 (Mass. Super. April 12, 2007);
Haidak v. Pfizer, Inc.
, 2002 WL 126680, at *2 (S.D.N.Y. Jan. 31, 2002).
Muilenberg v. Upjohn Co.
, 426 N.W.2d 767, 773 (Mich. App. 1988);
May v. Parke, Davis & Co.
, 370 N.W.2d 371, 376 (Mich. App. 1985);
Dunn v. Lederle Laboratories
, 328 N.W.2d 576, 580 (Mich. App. 1983).
O’Hare v. Merck & Co.
, 381 F.2d 286, 291 (8th Cir. 1967).
Bine v. Sterling Drug, Inc.
, 422 S.W.2d 623, 627-28 (Mo. 1968);
Meyer v. Astrazeneca Pharmaceuticals, L.P.
, 224 S.W.3d 106, 108 (Mo. App. 2007);
Johnston v. Upjohn Co.
, 442 S.W.2d 93, 97 (Mo. App. 1969);
Sterling Drug, Inc. v. Cornish
, 370 F.2d 82, 84 (8th Cir. 1966);
Stanger v. Smith & Nephew, Inc.
, 401 F.Supp.2d 974, 980-81 (E.D. Mo. 2005).
Hill v. Squibb & Sons
, 592 P.2d 1383, 1388 (Mont. 1979);
Davis v. Wyeth Laboratories, Inc.
, 399 F.2d 121, 129 (9th Cir. 1968).
Brochu v. Ortho Pharmaceutical Corp.
, 642 F.2d 652, 657-58 (1st Cir. 1981).
: N.J.S.A. 2A:58C-3a(1);
Feldman v. Lederle Laboratories
, 479 A.2d 374, 386-87 (N.J. 1984);
Ferrigno v. Eli Lilly & Co.
, 420 A.2d 1305, 1321 (N.J. Super. Law Div. 1980).
Richards v. Upjohn Co.
, 625 P.2d 1192, 1195-96 (N.M. App. 1980).
Mulhall v. Hannafin
, 841 N.Y.S.2d 282, 285-86 (N.Y.A.D. 2007);
Donigi v. American Cyanamid Co.
, 394 N.Y.S.2d 422, 422-23 (N.Y.A.D. 1977),
aff’d mem.
, 374 N.E.2d 1245 (N.Y. 1978);
Friedman v. Medtronic, Inc.
, 345 N.Y.S.2d 637, 642 (N.Y.A.D. 1973);
Garfinkel v. Bayer Corp.
, 2003 WL 25668274 (N.Y. Sup. Oct. 30, 2003);
Tenuto v. Lederle Laboratories
, 695 N.Y.S.2d 259, 263 (N.Y. Sup. 1999),
, 714 N.Y.S.2d 448 (N.Y.A.D. 2000).
Harris v. McNeil Pharmaceutical
, 2000 WL 33339657, at *3 n.2 (D.N.D. Sept. 5, 2000).
White v. Wyeth Laboratories, Inc.
, 533 N.E.2d 748, 753 (Ohio 1988).
Edwards v. Basel Pharmaceuticals
, 933 P.2d 298, 303 (Okla. 1997).
McEwen v. Ortho Pharmaceutical Corp.
, 528 P.2d 522, 528-29 (Or. 1974);
Cochran v. Brooke
, 409 P.2d 904, 907 (Or. 1966).
Hahn v. Richter
, 628 A.2d 860, 867-68 (Pa. Super. 1993),
, 673 A.2d 860 (Pa. 1996);
Leibowitz v. Ortho Pharmaceutical Corp.
, 307 A.2d 449, 458 (Pa. Super. 1973);
Mazur v. Merck & Co.
, 964 F.2d 1348, 1366-67 (3d Cir. 1992);
, 489 F.Supp.2d 230, 268 (E.D.N.Y. 2007).
Muniz-Nunez v. American Home Products Corp.
, 582 F.Supp. 459, 462 (D.P.R. 1984).
Castrignano v. E.R. Squibb & Sons, Inc.
, 546 A.2d 775, 782 (R.I. 1988);
Castrignano v. E.R. Squibb & Sons, Inc.
, 900 F.2d 455, 459-60 (1st Cir. 1990).
McElhaney v. Eli Lilly & Co.
, 575 F.Supp. 228, 231-32 (D.S.D. 1983),
, 739 F.2d 340 (8th Cir. 1984).
Witherspoon v. Ciba-Geigy Corp.
, 1986 WL 2138, at *3 (Tenn. App. Feb. 12, 1986).
Bristol-Myers Co. v. Gonzales
, 561 S.W.2d 801, 804 (Tex. 1978);
Crocker v. Winthrop Laboratories
, 514 S.W.2d 429, 433 (Tex. 1974);
Gerber v. Hoffmann-La Roche Inc.
, 392 F.Supp.2d 907, 915 (S.D. Tex. 2005).
Grundberg v. Upjohn Co.
, 813 P.2d 89, 98 (Utah 1991).
Stanback v. Parke, Davis & Co.
, 502 F.Supp. 767, 770 (W.D. Va. 1980).
Laisure-Radke v. Par Pharmaceutical, Inc.
, 426 F.Supp.2d 1163, 1172-73 (W.D. Wash. 2006).
Totterdale v. Lederle Laboratories
, 2008 WL 972657 (W. Va. Cir. March 19, 2008).
Stupak v. Hoffman-La Roche, Inc.
, 2007 WL 4218982, at *2 (M.D. Fla. Nov. 29, 2007).
Thom v. Bristol-Myers Squibb Co.
, 353 F.3d 848, 854-55 (10th Cir. 2003); Jacobs v. Dista Products Co., 693 F.Supp. 1029, 1033-34 (D. Wyo. 1988)
We’ll be greatly interested to see how the state-of-the-art defense evolves in prescription drug product liability litigation, now that the Supreme Court has invoked knowability/unknowability principles as a limitation on preemption.

druganddevicelaw.blogspot.com