Mass Tort Program Changes – Philadephia CCP

We were going to blog about something else today, but we received what Judge Herron of the Philadelphia Court of Common Pleas has entitled “General Court Regulation No. 2012-01 In re: Mass Tort and Asbestos Programs.”  Here’s a copy. The Regulation makes some significant changes in the Court’s mass tort program.

 

First off, Judge Moss is taking senior status, so there will be a new Coordinating Judge of the Philadelphia Complex Litigation Center and Mass Tort program – Judge Arnold New.  It’s been a number of years, but once Judge New granted judgment n.o.v. in one of Bexis’ cases.  On appeal that case became Schindler v. Sofamor, Inc., 774 A.2d 765 (Pa. Super. 2001).

 

A lot of the order is specific to asbestos cases, where those defendants remain uniquely disadvantaged.  As the regulation indicates, “[i]n January and again in March, 2009, certain Court leadership invited the filing of asbestos cases from other jurisdictions.”  Id. at 1.  As a result, the asbestos backlog is back – the reason given for retaining consolidated trials in those actions.

 

But for drug and device, the news is better:

• Reverse bifurcation is gone – “unless agreed upon by all counsel involved.”
• Consolidated trials (except in asbestos cases) are gone “absent an agreement of all parties.” We doubt that will happen often, if at all. Consolidation is not something the defense side likes. Our big consolidation post gives our reasons.
• “All punitive damage claims in mass tort claims shall be deferred.”   We'll be interested to see what "deferred" means.
• Plaintiffs who come to Philly, can expect to do their discovery in Philly. “[A]ll discovery shall take place in Philadelphia” unless defense counsel agree otherwise.
• A "special panel of former judges" has been created for mediation in mass torts cases (this doesn’t appear to be limited to asbestos).  These mediators are:  Hons. Jane Cutler Greenspan, G. Craig Lord, James R. Melinson, Russell Nigro, and Diane M. Welsh.
• No out-of-state lawyer – plaintiff or defense – can try more than two cases in a year. After all, the Pennsylvania bar exam isn’t all that hard.
• No leapfrogging. “Expediting” cases for medical or financial reasons is abolished.

 

To Linsanity and Beyond (to the Tierney case)

Some of us on this blog have rooting interests that lie far from where The Schuylkill and The Delaware meet.  They’re up past the New Jersey Turnpike, all the way to New York City.  For us, ever since the echoes of the Giants’ raucous ride through the Canyon of Heroes faded, it’s been all about the Knicks and Linsanity!  And after watching the Linsane 3-pointer to win the game last night, we must admit that we expected it to be difficult to sit down calmly, think, and then write a post about medical device decisions.  But that’s what we’re here for, and it gave us another thing to occupy our time while we wait for Linsanity to tip off once again tonight.

Fortunately, the case we’d like to discuss, Tierney v. AGA Medical Corp., No. 4:11CV3098 (D. Neb), has two recent opinions that contain so many things that we like that discussing it isn’t difficult at all.  It has preemption.  It has Twiqbal-like pleadings standards.  It has enforcement of the rules.  And it displays the type of judicial distaste for the use of discovery as a fishing expedition that heartens us. 

The background of the case is rather ordinary.  The plaintiff filed negligence and strict liability claims against the manufacturer of a heart-related medical device, claiming that the device contained nickel elements that caused an allergic reaction.  Slip Op. at 1-2.  But the device was approved under the FDA‘s pre-market approval process.  That means that the claims are preempted.  In fact, the plaintiff himself responded to the manufacturer’s motion to dismiss by outright conceding that his claims are preempted.  Slip Op. at 5. 

But what’s heartening about this case is how the court handled the procedural machinations from the plaintiff.  For instance, after conceding, the plaintiff requested the court to grant him 180 days to conduct discovery and amend his complaint to bring a parallel violation claim – i.e., that the manufacturer didn’t follow FDA specifications.  Slip Op. at 6-7.  In other words, the plaintiff wanted the court to authorize him to go on a search for a claim that he didn’t have.  The court didn’t do it and gave numerous reasons why.  A request to amend must be made by motion, not in opposition papers like plaintiff tried.  Id.  That motion should attach a proposed amended complaint, which the plaintiff didn’t do.  Id.  The proposed amendment should be backed by “sufficient factual allegations,” not the bare legal conclusion about not following FDA specifications that the plaintiff provided.   Accordingly, the court dismissed the complaint with prejudice, noting along the way that a plaintiff must “show that he or she is not merely engaged in a fishing expedition.”  Id. 

It didn’t end there, though.  A few weeks later, the plaintiff tried again.  He filed what seems to have been styled as a motion under Rule 59 to alter or amend the previous judgment, under Rule 60 for relief from the previous judgment, and/or under Rule 15 for leave to amend his complaint, and this time the plaintiff attached an amended complaint.  This filing also had a litany of procedural and pleading problems, and the court addressed them all.  Tierney v. AGA Medical Corp., 2012 U.S. Dist. LEXIS 14212 (D. Neb. Feb. 7, 2012).

First, plaintiff wanted to proceed on the failure to warn claim that he stated in his first complaint but now under the theory that the manufacturer failed to file required adverse event reports, an allegation contained in his amended complaint.  Id. at *9-10.  But this particular allegation was nowhere to be found in the original complaint, so dismissing it with the court’s previous order could not have been “manifest error” under Rule 59.  Id. at *10-11.  Plaintiff also failed to show that his new parallel violation claim rested upon evidence that could not have been discovered earlier.  So there also was no basis under Rule 60(b)(2) to alter the judgment.  Id. at *11-12.  Second, the plaintiff tried to rely on a patient guide that he had downloaded from the manufacturer’s web site, arguing that the guide showed a failure to warn about allergic reactions to nickel.  But, again, the plaintiff made no showing that this evidence could not have been discovered earlier.  Moreover, he provided no factual allegation to indicate that this alleged omission was material to any FDA specification, or even something that the plaintiff himself relied on.  Id. at *12-13.  Finally, the plaintiff asked the court to simply accept his allegation that the manufacturer did not follow the FDA’s standards.  Explaining once again that “bare legal conclusions” with “no supporting factual allegations whatsoever” are not enough, the court rejected this argument, and with that upheld its previous judgment.  Id. at *13-15.

It’s not often that we see such strong products liability decisions rendered at the motion to dismiss stage.  While the Tierney court’s decisions are loaded with procedural discussion, they’re important.  Proper application of the rules allowed the court to dismiss a claim that was clearly preempted and stop the plaintiff from getting around that dismissal.  But, even more important, reading and reporting on the Tierney decisions has taken up some time.  We’ve moved closer to tonight.  Linsanity tips-off at 7:30 EST.

Drug and Device MDL Update

            Several years ago, we decided to try to name the drug and device mass torts.   You know, in case the longest-running products liability MDL is ever the Final Jeopardy answer.  Or, if knowing the largest pharmaceutical MDL to date is something you can use as an ice breaker.  Actually, if you know those things, as my grandmother would say – that and a nickel will get you a cup of coffee (she’s 95 and unfamiliar with Starbuck’s prices).

            But, we decided the list was worth updating anyway – including providing links to litigation websites where available.  Let’s start with the ones that are still around since our original post in 2008.  Some are shadows of their former selves; just a few cases hanging on for resolution:

MDL - 986 IN RE: "Factor VIII or IX Concentrate Blood Products" Products Liability Litigation (no website)

MDL-1203 IN RE Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation

MDL-1431 IN RE Baycol Products Liability Litigation 

MDL-1596 IN RE Zyprexa Products Liability Litigation (no website)

MDL-1626 IN RE Accutane Products Liability Litigation (no website)

MDL-1629 IN RE Neurontin Marketing, Sales Practices and Products Liability Litigation (no website)

MDL-1657 IN RE Vioxx Marketing, Sales Practices and Products Liability Litigation

MDL-1699 IN RE Bextra and Celebrex Marketing, Sales Practices and Products Liability Litigation

MDL-1708 IN RE Guidant Corp. Implantable Defibrillators Products Liability Litigation

MDL-1736 IN RE Celexa and Lexapro Products Liability Litigation (no website)

MDL-1742 IN RE Ortho Evra Products Liability Litigation 

MDL-1763 IN RE Human Tissue Products Liability Litigation (no website)

MDL-1769 IN RE Seroquel Products Liability Litigation

MDL-1785 IN RE Bausch & Lomb Inc. Contact Lens Solution Products Liability Litigation (no website)

MDL-1836 IN RE Mirapex Products Liability Litigation

But, some are still going strong and may well continue to generate law that we report on here:
MDL-1355 IN RE Propulsid Products Liability Litigation

MDL-1507 IN RE Prempro Products Liability Litigation

MDL-1789 IN RE Fosamax Products Liability Litigation (no website)

MDL-1760 IN RE Aredia and Zometa Products Liability Litigation (no website)

MDL-1842 IN RE Kugel Mesh Hernia Patch Products Liability Litigation

MDL-1871 IN RE: Avandia Marketing, Sales Practices and Products Liability Litigation

MDL- 1909 IN RE: Gadolinium Contrast Dyes Products Liability Litigation

MDL- 1928 IN RE: Trasylol Products Liability Litigation

MDL- 1943 IN RE: Levaquin Products Liability Litigation

MDL- 1953 IN RE: Heparin Products Liability Litigation

MDL- 1959 IN RE: Panacryl Sutures Products Liability Litigation (no website)

MDL- 1964 IN RE: NuvaRing Products Liability Litigation (no website)

MDL- 1968 IN RE: Digitek Products Liability Litigation

MDL- 2004 IN RE: Mentor Corp. ObTape Transobturator Sling Products Liability Litigation (no website)

            Now, how about the new (?) ones.  These aren’t all the drug/device MDLs that have been created since 2008, but they are the ones that are still listed as active by the Judicial Panel on Multidistrict Litigation:

MDL - 2023 IN RE: Bayer Corp. Combination Aspirin Products Marketing and Sales Practices Litigation (no website)

MDL - 2051 IN RE: Denture Cream Products Liability Litigation 

MDL - 2066 IN RE: Oral Sodium Phosphate Solution-Based Products Liability Litigation 

MDL - 2067 IN RE: Celexa and Lexapro Marketing and Sales Practices Litigation (no website)

MDL - 2087 IN RE: Hydroxycut Marketing and Sales Practices Litigation (no website)

MDL - 2092 IN RE: Chantix (Varenicline) Products Liability Litigation 

MDL - 2100 IN RE: Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation 

MDL - 2107 IN RE: Budeprion XL Marketing and Sales Practices Litigation (no website)

MDL - 2120 IN RE: Pamidronate Products Liability Litigation (no website)

MDL - 2158 IN RE: Zimmer Durom Hip Cup Products Liability Litigation (no website)

MDL - 2187 IN RE: Avaulta Pelvic Support Systems Products Liability Litigation 

MDL - 2190 IN RE: McNeil Consumer Healthcare, et al., Marketing and Sales Practices Litigation (no website)

MDL - 2197 IN RE: DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation 

MDL - 2226 IN RE: Darvocet, Darvon and Propoxyphene Products Liability Litigation (no website)

MDL - 2243 IN RE: Fosamax (Alendronate Sodium) Products Liability Litigation (No. II) (no website)

MDL - 2244 IN RE: DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation (no website)

MDL - 2272 IN RE: Zimmer NexGen Knee Implant Products Liability Litigation (no website)

MDL - 2299 IN RE: Actos (Pioglitazone) Products Liability Litigation

MDL - 2325 IN RE: American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation (no website)

MDL - 2326 IN RE: Boston Scientific Corp., Pelvic Repair System Products Liability Litigation (no website)

MDL - 2327 IN RE: Ethicon, Inc., Pelvic Repair System Products Liability Litigation (no website)

MDL - 2329 IN RE: Wright Medical Technology, Inc., Conserve Hip Implant Products Liability Litigation (no website)

            There you have it.  A list of what’s what in drug and device MDLs.  For the record – What is MDL 875--Asbestos Products Litigation? and Diet Drugs (according to JPML numbers).