Product Liability 2009 - Arnold & Porter LLP

Update on U.S. Product Liability Law Sidley Austin LLP
11. Multidistrict litigation (MDL) is a procedure used to transfer
to one federal judge all pending federal civil cases of a
similar type filed throughout the United States for purposes
of pretrial coordination. See http://www.jpml.uscourts.gov/
for additional information.
12. See, e.g., Bausch v. Stryker Corp., No. 08 C 4248, 2008 WL
5157940 (N.D. Ill. Dec. 9, 2008) (dismissing strict liability
and negligence claims); Link v. Zimmer Holdings, Inc., No.
06 C 5438, 2008 WL 5047677 (N.D. Ill. Nov. 26, 2008)
(dismissing strict liability, negligence, and breach of
warranty claims); Parker v. Stryker Corp., 584 F. Supp. 2d
1298 (D. Colo. 2008) (dismissing failure to warn, defective
design, negligence, and breach of warranties claims); see
also In re: Medtronic, Inc. Sprint Fidelis Leads Prods. Liab.
Litig., 592 F. Supp. 2d 1147 (D. Minn. 2009) (dismissing
entire MDL).
13. See Barry Meier & Natasha Singer, Drug Ruling Puts
Devices in Spotlight, N.Y. TIMES, Mar. 5, 2009 (noting that
“influential members of Congress plan to introduce a bill
soon that would supersede last year’s Supreme Court device
ruling [i.e., Riegel]”), available at http://www.nytimes.com
/2009/03/05/business/05device.html?partner=rss.
14. See, e.g., McClain v. Metabolife, 401 F.3d 1233, 1237 (11th
Cir. 2005).
15. The Human Tissue MDL arose from a criminal enterprise by
Biomedical Tissue Services, Ltd. (BTS), and its principle to
harvest tissue from human corpses without obtaining proper
consents or following appropriate regulations. Defendants
include the principles in the criminal operation, the funeral
homes who allowed BTS access to the corpses, the
companies who processed tissue recovered by BTS, the
distributors of the processed tissue products, and the
hospitals and medical personnel who transplanted the
processed tissue product.
16. Seroquel is an atypical antipsychotic medication indicated
for treatment of certain bipolar disorders and schizophrenia.
Product liability cases involving Seroquel are coordinated in
MDL 1769 before the U.S. District Court, Middle District of
Florida. The majority of plaintiffs claim that Seroquel
caused them to develop diabetes and/or diabetes-related
ailments.
17. See, e.g., Coffman v. Keene Corp., 628 A.2d 710, 716-21
(N.J. 1993); Reyes v. Wyeth Labs., 498 F.2d 1264, 1281 (5th
Cir. 1974), cert denied, 419 U.S. 1096 (1974).
18. See, e.g., Coffman, 628 A.2d at 719-20 (collecting cases in
which courts adopted a heeding presumption in failure-towarn
cases).
19. See, e.g., Reyes, 498 F.2d at 1281.
20. See, e.g., Coffman, 628 A.2d at 716-20. Comment j provides,
in relevant part: “Where [a] warning is given, the seller may
reasonably assume that it will be read and heeded; and a
product bearing such a warning, which is safe for use if it is
followed, is not in defective condition, nor is it unreasonably
dangerous.”
21. See, e.g., Ackermann v. Wyeth Pharms., 526 F.3d 203, 207-08
(5th Cir. 2008).
22. See, e.g., id. at 208-09; see also Ebel v. Eli Lilly & Co., No.
08-40170, 2009 WL 837325, at *6 (5th Cir., March 30, 2009)
(applying Texas law).
23. See, e.g., Giles v. Wyeth, Inc., 500 F. Supp. 2d 1063, 1065-66
(S.D. Ill. 2007) ( “Some states apply a heeding presumption
in learned intermediary cases. In these states, a court
presumes that warnings, if given, will be heeded and
followed and that medical practitioners will act
24.
competently”) (internal quotations omitted).
See Porter v. Eli Lilly & Co., 291 Fed. Appx. 963 (11th Cir.
2008) (applying Georgia law to grant summary judgment to
ICLG TO: PRODUCT LIABILITY 2009
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defendant where the prescribing physician testified that even
if he had read the warning proposed by the plaintiff, he
would have still prescribed Prozac to the plaintiff); Dietz v.
SmithKline Beecham Corp., No. 4:07-CV-6077-RLV, 2008
WL 5329295 (N.D. Ga. Dec. 9, 2008) (applying Georgia law
and relying on Porter, the court granted summary judgment
to defendant where the prescribing physician testified that he
stood by his decision to prescribe Paxil to the plaintiff and
would do so at present despite a new warning for Paxil) But
see Rimbert v. Eli Lilly & Co., 577 F. Supp. 2d 1174, 1182,
1196-99 (D.N.M. 2008) (denying summary judgment to
defendant on issue of proximate cause even though
prescriber testified he was “confident” that he would have
prescribed Prozac to the plaintiff in 2003 even if it had a
boxed warning that was later added in 2007).
25. See Schrock, 2009 WL 635415, at *5 (“[T]wenty four courts
in fourteen different states have rejected the assertion that
defendants have a duty to warn about products they did not
manufacture.”); Moretti v. Wyeth, No. 2:08-CV-00396-
JCMGWF, 2009 WL 749532, at *4 n.1 (D. Nev. Mar. 20,
2009) (collecting cases that have rejected manufacturer
liability in this context).
26. Conte v. Wyeth, Inc., 168 Cal. App. 4th 89 (Cal. Ct. App.
2009).
27. See also id. at 105.
28. Id. at 103.
29. Section 310 provides that an actor who makes a
misrepresentation is subject to liability if the actor “intends
his statement to induce or should realize that it is likely to
induce by action the other.”
30. Section 311 provides that one who negligently gives false
information to another is liable for harm caused by action
taken by the other in reasonable reliance on the information
where such harm results “to such third persons as the actor
should expect to put in peril by the action taken.”
31. Conte, 168 Cal. App. 4th at 103-04 (citing Garcia v. Superior
Court, 789 P.2d 960 (Cal. 1990) (holding that parole officer
had a duty of care where parolee kidnapped and shot victim
after parole officer told parolee’s victim that parolee would
“not come looking for her” after his release); Randi W. v.
Muroc Joint Unified School Dist., 929 P.2d 582 (Cal. 1997)
(School district held liable for misrepresentations about a
former employee where employee molested a student in his
new employment)).
32. Schrock, 2009 WL 635415, at *5; Moretti, 2009 WL 749532.
33. Moretti, 2009 WL 749532, at *4.
34. See, e.g., Morgan v. Gay, 471 F.3d 469 (3d Cir. 2006), cert.
denied, 128 S. Ct. 66 (2007) (affirming the remand of a
putative class action where plaintiff expressly disclaimed
recovery of $5 million or more).
35. See, e.g., Freeman v. Blue Ridge Paper Prods., Inc., 551 F.3d
405 (6th Cir. 2008) (holding that the requested damages of
five consolidated actions, each disclaiming damages above
$4.9 million, may be aggregated to $24.5 million making
removal of the consolidated action proper under CAFA).
36. Compare Lewis v. Ford Motor Co., No. 2:09-cv-00164-
WLS, 2009 WL 840233 (W.D. Pa. Mar. 26, 2009)
(considering affidavit submitted by defendant and other
extrinsic evidence in concluding that more than $5 million
was at stake even though the complaint was silent on the
amount in controversy), with Lowery v. Alabama Power Co.,
483 F.3d 1184 (11th Cir. 2007), cert. denied, 128 S. Ct. 2877
(2008), and Innovative Health & Wellness LLC v. State Farm
Mut. Auto. Ins. Co., No. 08-60786, 2008 WL 3471597 (S.D.
Fla. Aug. 11, 2008) (relying on Lowery). Lowery was
discussed in detail in S. Gourley & S. Knutson, supra note 7,
at 24-25.
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