Friday, November 30, 2012
Thanks to a bunch of people for letting us know.
- Lore v. Lone Pine Corp., 1986 N.J. Super. LEXIS 1626 (N.J. Sup. Ct. Nov. 18, 1986).
- Cottle v. Superior Court, 3 Cal. App. 4th 1367 (Cal. Ct. App. 1992) (upholding trial court order requiring plaintiffs to identify product, exposure, alleged injury and the identity of a medical expert who will support the plaintiff's personal injury claim”).
- Atwood v. Warner Electric Brake & Clutch Co, 605 N.E.2d 1032 (Ill. App. 2d 1992) (upholding trial court order requiring plaintiffs to produce case-specific medical reports and submit to defense expert medical examinations before the depositions of the plaintiffs were scheduled).
- Acuna v. Brown & Root, Inc., 200 F.3d 335 (5th Cir. 2000) (holding no abuse of discretion by trial court in entering Lone Pine orders; “The scheduling orders issued below essentially required that information which plaintiffs should have had before filing their claims pursuant to FRCP 11(b)(3)”).
- In re Baycol Litig., November Term, 2001, No. 0001, Order (Ct. Com. Pl. Phila. Co. Dec. 12, 2003) (entering Lone Pine order in Pennsylvania state court coordinated Baycol proceeding)
- In re Baycol Prods. Liab. Litig., MDL No. 1431, 2004 WL 626866, at *1 (D. Minn. Mar. 18, 2004) (entering initial Lone Pine order, which was later amended, for numerous purposes including to “identify . . . the claims of those plaintiffs who have and those who do not have factually and legally sufficient support for their alleged claims and injuries or damages”).
- In re: N.Y. Rezulin Prods. Liab. Litig., slip op., Master Index No. 752,000/00, Order (N.Y. Sup. Ct. N.Y. Co. Aug. 7, 2004) (entering Lone Pine order in New York state court coordinated Rezulin proceeding).
- In re Rezulin Prods. Liab. Litig., MDL No. 1348, 2005 WL 1105067 (S.D.N.Y. May 9, 2005) (ordering plaintiffs to serve case-specific expert reports, failure to do so may result in sanction of dismissal with prejudice).
- In re Silica Prods. Liability Litig., 398 F. Supp. 2d 563, 576 (S.D. Tex. 2005) (entering Lone Pine type order requiring each plaintiff to submit specific information about his exposure to silica dust and detailed medical information concerning each alleged injury).
- In re 1994 Exxon Chemical Plant Fire, 2005 WL 6252312 (M.D. La. Apr. 7, 2005) (entering Lone Pine order, finding that if plaintiff is unable to comply “the court should be concerned with the viability of that plaintiff’s claims” and that the Lone Pine order “would reduce costs and save time.”)
- Burns v. Universal Crop Protection Alliance, 2007 U.S. Dist. LEXIS 71716 (E.D. Ark. Sept. 25, 2007) (entering Lone Pine order in products liability action brought by 82 cotton farmers against five herbicide manufacturers, finding “a preliminary showing on causation is necessary for efficient case management”).
- Baker v. Chevron USA, Inc., 2007 U.S. Dist. LEXIS 6601 (S.D. Ohio Jan. 30, 2007) (dismissing plaintiffs who failed to comply with Lone Pine case management order).
- In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 743-44 (E.D. La.2008) (denying plaintiffs’ motion to stay Lone Pine order finding “it is not too much to ask a Plaintiff to provide some kind of evidence to support their claim that Vioxx caused them personal injury . . . Surely if Plaintiffs' counsel believe that such claims have merit, they must have some basis for that belief; after all this time it is reasonable to require Plaintiffs to come forward and show the basis for their beliefs and show some kind of basic evidence of specific causation.”); dismissal of plaintiffs for failure to comply with Lone Pine order affirmed by 388 Fed.Appx. 391, 2010 WL 2802352 (5th Cir. Jul. 16, 2010).
- In re Bextra and Celebrex Mktg. Sales Practices and Prod. Liab. Litig., MDL No. 1699, slip op., (N.D. Cal. Aug. 8, 2008) (Lone Pine order containing step-by-step enforcement enforcement procedures leading to dismissal for failure to comply).
- Abbatiello v. Monsanto Co., 569 F. Supp. 2d 351 (S.D.N.Y.2008) (in toxic tort action involving multiple parties, court denied plaintiffs’ request to stay previously entered Lone Pine order finding reason for “requiring early individual causation expert evidence, is to protect defendants and the Court from the burdens associated with potentially non-meritorious mass tort claims”).
- McManaway v. KBR, Inc., 265 F.R.D. 384 (S.D. Ind. 2009)(entering Lone Pine order requiring plaintiffs to serve case-specific expert reports on exposure, injury and causation, but due to the early stage of the litigation “failure to address the causation issue will not be grounds for immediate dismissal” but may warrant awarding defense costs and fees if summary judgment later granted on that basis).
- In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., MDL No. 1871, 2010 WL 4720335 (E.D.Pa. Nov. 15, 2010) (entering Lone Pine order court noted it was concerned by unsupported Plaintiff Fact Sheets and the need to “objectively identify which of the many thousand plaintiffs have injuries which can credibly be attributed to Avandia usage.” Further, the order “merely requires information which plaintiffs and their counsel should have possessed before filing their claims: proof of Avanida usage, proof of injury, information about the nature of the injury, and the relation in time of the injury to the Avandia usage.”).
- Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833-34 (9th Cir. 2010) (upholding both entry of Lone Pine order as to exposure and causation and dismissal of plaintiffs whose proffered expert report failed to satisfy Daubert).
- Strudley v. Antero Resources Corporation, No. 2011CV2218, slip op. (Denver County, CO May 12, 2012) (court entered Lone Pine order requiring plaintiffs to produce admissible expert evidence to establish a prima facie showing of exposure and causation; then dismissed case because plaintiffs' expert could not establish causation).
- In re Fosamax Products Liability Litigation, 2012 U.S. Dist. LEXIS 166734 (S.D.N.Y. Nov. 20, 2012) (entering Lone Pine order for particular alleged injuries to “target potentially spurious claims without imposing undue obligations upon other plaintiffs.”).
Thursday, November 29, 2012
Wednesday, November 28, 2012
Tuesday, November 27, 2012
Monday, November 26, 2012
Friday, November 23, 2012
Wednesday, November 21, 2012
Well, by way of blog reader Adam Michael at Pepper, now we can do better than that. Yesterday, the Second Circuit - in a completely different case - agreed with the prediction that Rhode Island would adopt the learned intermediary rule:
Greaves v. Eli Lilly & Co., No. 11-5346, slip op. at 3 (2d Cir. Nov. 20, 2012) (citation and footnote omitted). Uufortunately, Greaves is not a precedential decision, but that doesn't prevent it from being another step in the right direction.
As always our intrepid contributors deserve all the credit, and any blame, although there's not likely to be any this time around.
Those words were written in 1898 by Louis Ebel after the University of Michigan’s football team defeated the heavily-favored Maroons by one point. But if you didn’t know the history of “The Victors,” you might have thought the lyrics were written by Bexis. That is because “[i]n 1995, the [Michigan] Legislature amended M.C.L. 600.2946 to provide immunity for products-liability claims against a manufacturer or seller of a drug that was approved for safety and efficacy by the FDA and labeled in compliance with FDA standards.” Attorney Gen. v. Merck Sharp & Dohme Corp., 807 N.W.2d 343, 347 (Mich. Ct. App.), appeal denied, 803 N.W.2d 696 (2011).
First, the Court rejected the proposition that the definition of drug is limited to the API of a product. Pursuant to M.C.L. § 600.2945(d), if a product is considered a drug under federal law, it thereby falls within Michigan’s absolute defense. The FDCA, in turn, defines “drug” as: