U.S. Supreme Court Denies Cert from Colorado Supreme Court “Stream of Commerce” Decision

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A Colorado resident purchased a replacement main rotor holder for his radio-controlled helicopter from a retailer in Colorado. The main rotor holder was manufactured by Align Corporation, a Taiwanese company, and distributed by Horizon, a Delaware-based corporation. Align has no physical presence in the United States, but it contracts with U.S.-based distributors to sell its products to retailers who, in …

Massachusetts Supreme Court Finds Pharmacy Has Duty to Advise Prescribing Physician of Need for Prior Authorization

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Prior authorization was necessary in order for the plaintiff to obtain insurance coverage for Topamax, a medication she needed to control life-threatening seizures. The plaintiff’s insurance company paid for her Topamax prescription twice without issue, but once she reached her nineteenth birthday, the insurer refused to pay for the prescription because it had not received the prior authorization form required …

While Reversing Jury Verdict Due to Attorney Conduct, U.S. Fifth Circuit Affirms Plaintiffs on Personal Jurisdiction, Preemption, and Product Defect in Medical Device Case

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Plaintiffs who received metal-on-metal hip implants, suffered complications, and required revision surgery, received jury verdict of $502 million against the manufacturer and its parent company. The District Court applied Texas’ statutory exemplary-damages cap, which reduced the $360 million punitive award to $9.6 million. On appeal, the U.S. Fifth Circuit held that: (i) metal-on-plastic hip implants were viable alternative design, (ii) …

U.S. Fifth Circuit Affirms Verdict Against Unmanned Utility Vehicle Manufacturer, Allowing Evidence of Other Incidents and Affirming Jury Instruction on Alternative Feasible Design

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Plaintiff suffered permanent injuries when an unmanned utility vehicle, the “Workhorse”, ran her over. A key turns on the Workhorse’s electrical system, but it does not start the engine. Rather, there is a microswitch in the accelerator pedal which turns on the engine and propels the vehicle. The Workhorse also has a two-part brake pedal: The lower pedal is the …

Superior Court Judge in Arizona Grants Center for Auto Safety’s Motion to Unseal Records from Goodyear G159 Tire Cases

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The Center for Auto Safety (CAS) intervened into a wrongful death suit against Goodyear arising from defects in its G159 tire.  The Court granted CAS’s motion to unseal a large portion of the records that had been previously subject to a protective order, in that case and in several other similar cases. “In the course of the ruling adopting the Protective Order, …

Supreme Court of Massachusetts Holds that a Brand Manufacturer Can Be Liable for Failure to Warn Doctors and Patients Injured by Generic Forms of the Drug, where the Conduct is Not Merely Negligent, but Reckless

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“Where failure to warn claims are brought by consumers of a manufacturer’s own product, the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business…. But if consumers of generic drugs were allowed to recover damages for a brand-name manufacturer’s negligent failure to warn, it would be far more difficult …

U.S. Third Circuit Addresses Preemption in the Context of a Product that is Made Up of Some, But Not All, Class III Components; Allows Personal Jurisdiction Discovery to Go Forward on Alter Ego Theory

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This case presents an issue of first impression among the Courts of Appeals: How courts should apply the express preemption provision under the Federal Food Drug & Cosmetic Act to State Law tort claims challenging the design and manufacture of a medical device comprised of multiple components, some of which are from ‘Class III’ medical devices subject to Federal requirements, …

Louisiana Supreme Court Emphasizes that Daubert Only Applies to Methodology, and Not to the Expert’s Conclusions Themselves, Nor Issues of Credibility; in Proving Causation, either a Qualitative or Quantitative Assessment will Suffice

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Defendant, Fon’s Pest Management, spot treated the plaintiffs’ home for termites using a termiticide containing fipronil, an odorless and colorless neurotoxin that has been widely used since 1996. Following the treatments, the plaintiffs allegedly experienced headaches, nausea, dizziness, and confusion, and subsequently filed suit.  In support of their action, the Freemans retained several experts, including two medical toxicologists, a PhD …

California Supreme Court Holds That Brand Manufacturers Are Liable for Failure to Warn Claims by Patients Who Took Generic Forms of the Medication

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“Federal law explicitly conveys to the brand-name manufacturer — and only that manufacturer — the responsibility to provide an adequate warning label for both generic terbutaline and its brand-name equivalent, Brethine. Only the brand-name drug manufacturer has unilateral authority to modify the drug’s label by adding to or strengthening a warning. Generic drug manufacturers are required to follow the brand-name …

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 …