Remember the case we told you about last week where the court shutdown plaintiff’s attempt to use non-mutual offensive collateral estoppel?  Well, that wasn’t that plaintiff’s only loss that week.  In a companion decision, the court also rejected plaintiff’s attempt to use Federal Rule of Civil Procedure 43(a)’s remote trial testimony rule to skirt the jurisdictional limitations of Rule 45(c)(1).  Coblin v. Depuy Orthopaedics, Inc., 2024 WL 1357571 (E.D. Ken. Mar. 29, 2024).  As we explained in our prior post, this case was remanded from the hip implant MDL.  During wh ..read more

The result for the defendant (a “distributor of ophthalmologic supplies”) in the False Claims Act decision, United States ex rel. Fesenmaier v. Cameron-Ehlen Group, Inc., ___ F. Supp.3d ___, 2024 WL 489708 (D. Minn. Feb. 8, 2024), was so terrible that something good ended up happening. The total judgment was over $487 million “not including post-judgment interest, statutory attorneys’ fees or other taxable costs.”  Id. at *1.  Here are that judgment’s components: Of that amount, less than one tenth ($43,694,641.71) represented actual damages to the United States.  That actual-d ..read more

Released in 1965 by the Miracles, “The Tracks of My Tears” is ranked by Rolling Stone as the “Greatest Motown Song of All Time.” Smokey Robinson’s lead vocals are pure silk, the harmonies ooze soul, and  the guitar licks and strings tie it all together.  The song and the Miracles helped spread Motown around the globe.  Today’s decision about an artificial tears product won’t stack up against Smokey and the Miracles, but it hits a few chords worth sharing. Mosley v. EzriCare, 2024 WL 1342615 (E.D. Ky. Mar. 29, 2024) is a putative economic loss class action arising from the purcha ..read more

We write a lot of briefs involving federal preemption and Class III medical devices with premarket approval (or “PMA”).  Many of those briefs are in support of motions to dismiss lawsuits brought by attorneys who don’t regularly practice in the pharmaceutical and medical device product liability space.  The complaints filed by such attorneys often are written as if federal preemption doesn’t exist, so our motions to dismiss start by explaining the basics of express medical device preemption, 21 U.S.C. § 360k(a) as interpreted by Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), an ..read more

Coblin v. Depuy Orthopaedics, Inc., 2024 U.S. Dist. LEXIS 62114 (E.D. Kentucky April 4, 2024) is the ultimate dodged bullet.  It is part of a multidistrict litigation.  That’s bad enough. Then it gets worse.  It’s not just any MDL, it’s the hip implant MDL. Then it gets even worse. This Coblin decision involves a plaintiff’s motion for partial summary judgment.  Yikes.  Then it gets even even worse.  The plaintiff in Coblin moved for summary judgment based on nonmutual offensive collateral estoppel.  What is so bad – or perhaps we should say offensive ..read more

We have previously analogized that when a case is dismissed for failure to state a claim under Rule 12, that is like the plaintiff not even getting to first base.  And that when a complaint is dismissed for lack of standing, a rarer form of dismissal, the plaintiff couldn’t even get up to bat, let alone get on base.  A dismissal for lack of standing recently occurred in Gibriano v. Esai, Inc., 2024 U.S. Dist. LEXIS 59535 (D.N.J. Mar. 31, 2024).  When that kind of dismissal occurs, you can bet the complaint is really bogus. And this wasn’t plaintiff’s first attempt.  She got ..read more

One of the blogposts that generated a lot of “Thanks, I needed that” responses from our readership was our 2022 post, “Remote Depositions in MDLs.”  For that reason, we have updated it by adding references to additional MDL orders on that subject that have been entered since early 2022.  We pay particular attention to MDL orders because, due to their stakes, every procedural jot and tittle is gone over with a fine-toothed comb.  The “litigate everything” mentality in MDLs produces the most comprehensive consideration of issues that arise in remote depositions generally.  We ..read more

We observed oral argument the other day before the California Supreme Court in Himes v. Somatics, a case that places California’s learned intermediary doctrine squarely in the spotlight.  A learned intermediary case before the California Supreme Court?  For your ever-vigilant DDL bloggers, that is like Thanksgiving and Christmas wrapped into one!  Who will be giving thanks after the California Supreme Court decides Himes?  We don’t know, but it sure was a good show. To recap, Himes is before the California Supreme Court on a question certified from the Ninth Circuit.  ..read more

In early Summer we will be attending yet another bench and bar conference on Multidistrict Litigations.  The organizer of the conference recently asked us to switch from a panel focusing on MDL problems to a panel discussing potential solutions.  Of course, we agreed, because we’re all about being cooperative and constructive. Right?  Not really. Grousing is easier than fixing.  That’s especially true on this topic.  Any reader of this blog has been subjected to our incessant criticism of MDLs – the warehousing of meritless cases, the asymmetrical discovery, and the gr ..read more

Here is the latest guest post from our Reed Smith colleague, Kevin Hara. He examines whether a prevailing party in litigation can recover, as “costs,” the expenses of witness depositions conducted remotely – a question that has arisen with increasing frequency since the COVID-19 pandemic prompted a general trend towards use of remote depositions. Since our clients could be on either side of this issue, Kevin’s research addresses both sides. As always, our guest bloggers deserve all the credit (and any blame) for their efforts. ********** The legal profession seldom reaches absolute consensus o ..read more