U.S. Fifth Circuit Holds Express Warranty Claim Against the Manufacturer of Surgically Implanted Neurostimulator Not Preempted

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The preemption question “comes down to whether the warranty on Medtronic’s website was consistent with assessments made during the approval process, in which case this lawsuit would be preempted as a challenge to the FDA’s determination of safety and effectiveness, or whether the warranty goes beyond what the FDA considered. “What did the warranty promise? “Medtronic argues that it equates …

U.S. Fifth Circuit Affirms Judgment of Dismissal under LPLA, Rejecting Res Ipsa and Claims of “Misconduct” by Defense

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The plaintiff, Mr. Lyles, underwent anterior corpectomy and discectomy surgery, in which a “Verte-Stack” vertebral body replacement device was implanted in Lyles’s cervical spine, along with Progenix, a putty-like bone graft material that was mixed with bone dust.  In addition, an Atlantis Translations Anterior Cervical Plate System was used to stabilize the Verte-Stack and to promote fusion. Some time after …

District Court in Colorado Orders GM to Produce FEM Data in Roof Crush Case

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Pertile, a front seat passenger, was badly injured in a rollover. GM’s expert, Ms. Lu, issued a report which states that the roof structure was evaluated in tests that subjected the design to various collision speeds, impact directions and loading directions, and opined, in part based upon her “review of the technical reports and engineering documents” that the 2011 Chevrolet …

Judge Morgan, Sitting in the Eastern District of Louisiana, Applies Strict Products Liability under the General Maritime Law, rather than the LPLA, in a LHWCA Third-Party Case

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A marine cargo surveyor fell into the Mississippi River as he was attempting to board a vessel, wearing an inflatable life vest manufactured by Absolute Outdoor, Inc.  The plaintiff filed an action in rem against the vessel, pleading negligence, as well as a strict products liability claim against Absolute, under the GML.  In its answer, Absolute included a jury demand and …

Louisiana Fourth Circuit Affirms Verdict Against Tractor Manufacturer under the LPLA

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The plaintiff suffered permanently disabling injuries when she lost her footing and became pinned underneath the two rear tires of an over-the-road tractor while running alongside the vehicle in an attempt to shut off its engine. A jury found the manufacturer Daimler Trucks North America (DTNA) 90% at fault, while apportioning 10% of the fault to the owner of the …

U.S. Supreme Court Rejects Personal Jurisdiction in Pharmaceutical Case with Respect to Non-Resident Plaintiffs

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A group of plaintiffs, including 86 California residents and 592 residents of other states, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in …

U.S. Fifth Circuit Holds that Expert Testimony is Necessary to Establish Defective Lifeline Cable Claim under the LPLA

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Affirming summary judgment in an alleged defective lifeline cable case in which the plaintiff decided to proceed with lay testimony after his expert was excluded under Daubert, the U.S. Fifth Circuit held as follows: “To be sure, expert testimony is not required in every LPLA case. Plaintiffs may sometimes rely on lay testimony alone. But Appellants read too much into this …

U.S. Third Circuit Reverses Summary Judgment on Preemption in Fosamax Litigation

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Fosamax is a drug manufactured by Merck that belongs to a class of drugs known as bisphosphonates.  Both Merck and the FDA have long been aware that antiresorptive drugs like Fosamax could theoretically increase the risk of atypical femoral fractures. The question that both Merck and the FDA faced in the years following the drug’s approval was whether the developing …

U.S. Seventh Circuit Dismisses Class Action for Lack of Article III Standing against Manufacturers of Eye Drops Approved by the FDA

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A district court judge sitting in the Southern District of Illinois certified eight classes the manufacturers of eye drops that are allegedly unnecessarily large, in violation of the Illinois Consumer Fraud Act and the Missouri Merchandising Practices Act, because each eye drop exceeds 16 microliters, while the optimal size of an eye drop for treatment of glaucoma is 16 microliters, …

Connecticut Supreme Court Modifies Consumer Expectation Test under 402A, Rejects Affirmative Requirement for Alternative Feasible Design under Third Restatement

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In certified question arising from wrongful death action brought in Federal Court by survivors of former smoker, Philip Morris urged the Connecticut Supreme Court to adopt the Third Restatement, which “imposes two requirements that are not mandated under our [Second Restatement] § 402A tests: (1) proof that the harm was foreseeable; and (2) proof that a reasonable alternative design existed …