Comment K

Last week with dismay, we described the Eastern District of Pennsylvania’s decision in Gross v. Coloplast Corp., et al., 黑龙江福彩网app官方下载 WL 264691 (E.D. Pa. Jan. 17, 黑龙江福彩网app官方下载).   The Gross court (we are resisting the immature cheap shot) “predicted,” in the face of decades of contrary evidence, that the Pennsylvania Supreme Court would not extend

We would be remiss (and out of character) if we plunged into a discussion of today’s case without a shout-out to “Siba,” the gorgeous black Standard Poodle who won Best in Show at last week’s Westminster Kennel Club Dog Show. Regular readers of this blog may recall that we attend Westminster every year and that

The opinion, Schrecengost v. Coloplast Corp., 2019 WL 6465398 (W.D. Pa. Dec. 2, 2019), recently “predicted” that Pennsylvania would allow strict liability design and warning defect claims in cases involving prescription medical products.  Id. at *11-13.  In so doing Schrecengost was not only wrong, but loud wrong.  First, without even a serious discussion, Schrecengost

We had been waiting for the Utah Supreme Court’s decision in Burningham v. Wright Medical for some time.  As we pointed out in a blogpost when Burningham was first certified by the district court (Utah is one of the few courts allowing district court certification), over a year ago, “[p]ractically no court has . . 

First, we’ve endured MDL courts messing around with Utah law and ignoring the usual congruence in the treatment of prescription drugs and prescription medical devices under Restatement (Second) of Torts §402A, comment k (1965).  We covered that kerfuffle here, here, here, and here.  More recently, the Fifth Circuit in In re

Strict liability is not the same as absolute liability.  We learned that truth in law school, but too many plaintiff lawyers and judges seem to have unlearned it along the way.  The key separator between strict liability and absolute liability is comment k to section 402A of the Restatement (Second) of Torts (1965), which observes

When it comes to design defect claims and FDA pre-market approved (“PMA”) medical devices, “preemption” is our reflexive reaction. That’s entirely reasonable, given the many decisions that preempt state-law design-related claims since Riegel v. Medtronic, Inc., 552 U.S. 312 (2008).  We collect then all here.

Nevertheless, there are some judges, particularly (but not

A funny thing happened on the way to a defense verdict last year—after the jury decided that the defendant’s product was not defective, the MDL judge told the jurors that perhaps they did not “fully understand” and instructed them to try again. So the jury went back into the jury room, and having been duly