We’ve been following all this Pain Pump litigationfor some time – our “Pain Pump” topic has 31 posts in it − and with some trepidation. The trepidation has primarily derived from the Pain Pump defendants’ ratherpowerful state of the art defense in many of the current cases (mostlyinvolving older surgeries). As always,when the defendants have a solid defense, we see plaintiffs resorting to a varietyof more-or-less novel and expansive causes of action in attempt to circumventit. In Pain Pump we’ve seen duty totest, post-sale duty to warn, off-label promotion, and “no good deed goesunpunished” FDA-related allegations that amount to private FDCA enforcement. As to the latter, a word to the wise: Ifyou’ve already received a general use indication from the FDA for your device, anything youdo to seek a more precise indication, especially if you aren’t successful, mightbe used against you by plaintiffs improperly trying to impose their peculiarview of the FDCA
Well, with the plaintiffs unsuccessful (twice) ingetting a federal MDL, they haven’t all been able to pile on in one forum. Instead, it’s been the legal equivalent ofguerilla warfare in various courts – state and federal – around thecountry. Some of those cases have beenapproaching the trial stage. As veteransof the Baycol and Vioxx wars (among others), we know how important early trial wins can be.
Well, on February 6, 2013, the defense won a big one– in a difficult jurisdiction (California), but not in the worst parts of it(Orange County), which is where hundreds of California state Pain Pump (againstall defendants) cases have been “coordinated.” This bellwether case, the first to be tried inCalifornia, was called McKenna and the target defendant was Breg. Previously, other Pain Pump defendants alsowon a trial in federal court in Oregon, and we believe another in Wyoming.
Unlike the other most prominent Californiadefendant (I-Flow), Breg has not settled more than a few of its cases, optinginstead for the gutsier and more risky path of trying cases. Our intelligence tells us that, because McKennahad relatively favorable facts, Breg decided to push it to trial. We’ve heard that the trial judge, Hon. GailAndler, made some very favorable rulings for Breg in motions in limine andduring the trial – we’d love to get copies of anything in writing – but denied nonsuiton the statute of limitations, which would have meant no trial. Shades of Paveklo. Judge Andler presides over all of theCalifornia pain pump cases, so perhaps her other rulings, combined with thefavorable verdict, will give plaintiffs second thoughts about going to the maton more of these cases.
The allegations sound like an ordinary Pain Pumpcase – not surprising, since it was picked as a bellwether – shoulder surgeryin July 2002, followed by use of an infusion pump (a “Pain Care 3000” for thoseof you wanting product details). Theusual Pain Pump injury, chondrolysis, was claimed. The plaintiff’s causes of action werewarning-related and sounded in negligence and strict liability.
Although mooted by the verdict, the statute oflimitations grounds were solid. Plaintiff McKenna’s subsequent treating doctor (who has even worked forplaintiffs in other Pain Pump cases) actually sent plaintiffs an email statingthat he had chondrolysis from pain pump use – and still the plaintiffs blew thestatute by four days. Butevidently, the jury didn’t see it that way after the judge put the issue tothem. Oh well, conceivably Judge Andlercould revisit it, but that's not particularly necessary anymore.
Beyond the usual state of the art defense, Breg alsoasserted that the plaintiff didn’t have chondrolysis at all. Instead he had secondary osteoarthritis, aninjury which was not caused by the pump or the drug that it administered. This injury-based defense is why McKennawas a better than usual defense case.
The McKenna trial lasted three and a halfweeks. The jury found for the defense onboth the negligence and strict liability claims. We’ve heard the verdict was unanimous onstrict liability and 9-3 for the defense on negligence. We wonder if the difference was caused by theplaintiff trying to squeeze some novel claim (such as duty to test) into thenegligence count. In any event, itdidn’t work.
Winning the first bellwether in a mass tort isalways a big deal. So we at DDLaw offerour congratulations to Kim Schmid and her Bowman & Brooke trial team.
Hiç yorum yok:
Yorum Gönder