Lawyers USA · 2020-03-21 · News Page 2 LAWYERS USA WEEKLY UPDATE | SATURDAY, DECEMEBER 8, 2012 offer of judgment in the amount of $7,500 for lost wages and other fees, which she

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SATURDAY, DECEMEBER 8, 2012 | ISSUE 52

WEEKLY UPDATE

BY KIMBERLY ATKINS | STAFF WRITER

WASHINGTON – Can an employer, faced with a purported class action under the Fair Labor Standards Act, avoid liti-gation by immediately offering a settle-ment to the sole plaintiff before a class is certified?

The justices of the U.S. Supreme Court tackled that question on Monday dur-ing oral arguments in the case of Genesis Healthcare Corp. v. Symczyk.

The matter involves Laura Symczyk, who filed a purported class action alleging that her employer, Genesis HealthCare Corp., violated the Fair Labor Standards Act by automatically deducting time for breaks from employees’ time sheets, re-gardless of whether the workers were per-forming job duties during that time.

Before other workers could join Symc-zyk’s suit, Genesis offered her a Rule 68

BY SYLVIA HSIEH | STAFF WRITER

Since last year when the first lawsuits against Merck were filed over its hair loss drugs Propecia and Proscar, the number of suits has multiplied to approximately 1,000 cases in multidistrict litigation in U.S. District Court for the Eastern Dis-trict of New York.

The lawsuits allege that the drugs cause brain fog, erectile dysfunction, loss of li-bido and other sexual disorders. Propecia was approved in 1997 to treat male pattern baldness; Proscar was approved in 1992 for symptoms related to an enlarged prostate in men. The active ingredient in the drugs, finasteride, blocks an enzyme necessary for sexual and brain functions, according to plaintiffs’ attorneys.

The condition has been dubbed “post-finasteride syndrome” or PFS, and a con-ference on scientific developments link-ing finasteride to sexual, neurological and hormonal problems is scheduled to meet at the University of Milan in Italy on Feb. 19, 2013.

Last June, Merck changed its label in the U.S. after the Food and Drug Administra-tion issued a safety alert. The label change includes erectile dysfunction as a known side effect that can persist even after pa-tients stop taking the drug. In April of this year, the FDA ordered a label change to include other side effects that continue af-ter stopping use, such as libido disorders, ejaculation disorders and orgasm disor-ders for Propecia and decreased fertility for Proscar.

One of the allegations by plaintiffs is that the side effects are permanent even though Merck’s U.S. label had mentioned that they go away after discontinuing the drug.

The first lawsuits alleged that Mer-ck’s European labels contained stronger

Justices to rule on preemptionof drug design defect claims

The U.S. Supreme Court has agreed to decide whether federal law preempts state law design defect claims targeting generic pharmaceutical products.

The case from the 1st Circuit stems from a design defect claim brought by a woman who developed Steven Johnson Syndrome/Toxic Epidermal Necrolysis, a hypersensitivity disease that leads to severe skin disfigurement and blindness, after taking a prescribed pain reliever. Her doctor had prescribed a brand-name

drug, but her pharmacy gave her the ge-neric version.

The woman sued the generic drug maker, claiming the drug was defectively designed because its risks outweighed its benefits, making it unreasonably dan-gerous to consumers. She was awarded $21.1 million.

The drug maker appealed, arguing that the claim was preempted by the Federal Food Drug and Cosmetic Act under the

Lawsuits over hair loss drugs surge forward

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Can employers stop class actions before they start?

Page 2News LAWYERS USA WEEKLY UPDATE | SATURDAY, DECEMEBER 8, 2012

offer of judgment in the amount of $7,500 for lost wages and other fees, which she did not accept.

But a district court ruled that the settle-ment offer mooted any potential class ac-tion and dismissed the case for lack of sub-ject matter jurisdiction.

The 3rd Circuit reversed, ruling that the case should not have been dismissed before other similarly situated employees were given the opportunity to opt in.

Allowing such actions would give defen-dants the ability to strategically “pick off ” named plaintiffs to thwart class actions be-fore they begin, the court ruled.

The Supreme Court granted Genesis’s petition for certiorari.

Can employer ‘free itself from litigation?’

Ronald J. Mann, a professor at Colum-bia Law School in New York, argued on behalf of Genesis that the 3rd Circuit’s ruling “deprives the defendant of the abil-ity to free itself from litigation even when it is willing to pay complete relief to the sole plaintiff.”

Justice Ruth Bader Ginsburg noted that if the offer of judgment had been accepted by the plaintiff, others would have been precluded from bringing similar claims.

“The rules of issue and claim preclusion would apply,” agreed Mann, but “it’s com-mon for there to be preclusive effect of a judgment in one case against people that are not parties.”

Justice Elena Kagan looked to the Court’s ruling in Knox v. Service Employ-ees International Union to help decipher if the current case should have been deemed moot at all.

“Here is what the Court said … in Knox last year … : ‘A case becomes moot when

it’s impossible for a court to grant any ef-fectual relief whatever to the prevailing party,’” Kagan said. “Now, here the judge says: ‘Okay, is this case moot? Well, it’s not moot because at the very least, I could give the plaintiff $7,500, but I didn’t, [so] she still has her claim for at least $7,500.’”

The difference in the current case, Mann argued, was that the adequacy of the $7,500 offer to satisfy the judgment was “conceded repeatedly over the course of several years” by the plaintiff.

Ginsburg asked whether it would have made a difference if the plaintiff had sought to certify other workers in the class at the time the suit was filed.

“Suppose the plaintiff had, simultane-ously with the filing of the complaint, moved to have it preliminarily certified as on behalf of other employees similarly situated?” Ginsburg asked.

Mann said the result would be the same because “there’s just this one person” who is party to the claim, and she would still be the only person for whom the judgment could have been made.

“So it wouldn’t make any difference?” Ginsburg asked.

“It wouldn’t make any difference,” Mann said.

Waived argument?When Neal K. Katyal, a partner in the

Washington office of Hogan Lovells argu-ing on behalf of the plaintiff, said he want-ed to begin his argument by saying that a mootness dismissal was improper under Rule 68, Chief Justice John G. Roberts Jr. had an immediate response.

“I’d like to begin with the question of whether or not you waived that argument,” Roberts retorted.

“We did not waive it,” Katyal said. “We do think that the brief in opposition should

have pointed it out absolutely. It was a mis-take on our part not to.”

Roberts said that if the argument was properly argued, “we might have thought differently about whether to grant [certiorari].”

Back to the merits, Kagan asked Katyal what should happen if “a defendant comes forward and says, ‘I’m willing to satisfy the entire claim?’”

Katyal said the plaintiff shouldn’t be put in the position to bind others’ rights.

“You can’t force an offer onto a plaintiff that doesn’t award complete relief, because if you do so it undermines the collective action aspect of the claim,” Katyal said.

“Well, it undermines the collective as-pect if she never brings the suit in the first place,” said Justice Antonin G. Scalia. “I don’t know that the law demands that there be a collective suit.”

Katyal said the availability of class ac-tions in the statute shows that the plaintiffs have that right.

“I think that, as Justice Ginsburg said, if you adopt their rule, essentially you trun-cate that process and eliminate the ability of people to opt in” to the suit, Katyal said.

The government argued in support of Symczyk’s position, asserting that the plaintiff ’s claim should still be deemed live.

The employee “has never been compen-sated for her individual damage claim, nor has she received a court judgment favorably adjudicating that claim,” said Anthony A. Yang, assistant to the U.S. solicitor general.

Justice Stephen G. Breyer asked if the result would be different in a case in which an employee claimed the employer didn’t pay him on time, and when the “employer gave [a worker] the paycheck, he just didn’t cash it.”

“That doesn’t eliminate the past injury,” Yang said.

Roberts seemed unconvinced. “So if you’re due $100 from your employer, it’s a day late, he gives you $100 [plus] another dollar for interest, that doesn’t eliminate the past injury?”

“It doesn’t eliminate the injury,” Yang said. “It might be compensation for the injury.”

A ruling is expected later this term.

Continued from page 1

Can employers stop class actions before they start?

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reasoning of the Supreme Court’s deci-sion in PLIVA v. Mensing, which held that federal drug regulations governing generic drugs directly conflict with, and thus pre-empt, state-law failure-to-warn claim.

But the 1st Circuit affirmed the verdict, holding that the claim was not preempted under Wyeth v. Levine, which held that state law drug claims are not automatically

preempted by federal law. “[T]he Supreme Court not yet said it

would extend PLIVA’s exception to de-sign defect claims, but – while the generic maker has no choice as to label – the de-cision to make the drug and market it in New Hampshire is wholly its own,” the court said.

“On balance, we conclude that the Court adopted a general no-preemption rule in

Wyeth and that it is up to the Supreme Court to decide whether PLIVA’s excep-tion is to be enlarged to include design defect claims.”

A decision from the Court is expected later this term.

Mutual Pharmaceutical Co. v. Bartlett, No. 12-142. Certiorari granted: Nov. 30, 2012. Ruling below: 678 F.3d 30 (1st Cir. 2012).

– KIMBERLY ATKINS


Justices to rule on preemption of drug design defect claims

warnings about the drugs’ sexual side ef-fects than its American labels, including a warning that problems can persist after discontinuing use.

“In Merck’s own research, the company knew the drugs caused erectile dysfunc-tion in a certain percentage of people who

take it. … The question for Merck is: If you knew it did this, what proof do you have that it is not permanent? I am anxiously awaiting an answer to that,” said Alan Mil-stein, an attorney at Sherman Silverstein in Moorestown, N.J. who is on the plaintiffs’ steering committee for the MDL.

According to Milstein, who has about

50 clients, about 10 to 15 percent of pa-tients using Propecia and Proscar experi-ence troubling sexual side effects and many of them are in their sexual prime.

“Most of my clients are fairly young,” said Milstein. “These are 20, 25, 30-year-old guys who should be in a perpetually amorous state.”


Lawsuits over hair loss drugs surge forward

Read all of Lawyers USA’s up-to-the-minute coverage of the U.S. Supreme Court in our online feature:

Supreme Court ReportGo to: lawyersusaonline.com/supreme-court-report/

You can link to the full text of the opinions digested on this page by going to www.lawyersusaonline.com and searching the Lawyers USA website.

Page 4Top opiNioNs LAWYERS USA WEEKLY UPDATE | SATURDAY, DECEMEBER 8, 2012

BUSINESSPatent suit isn’t barred by prior trademark action

The doctrine of claim preclusion did not apply to bar a patent infringement lawsuit based on a prior related trademark protec-tion action, the Federal Circuit has ruled in reversing a dismissal.

The plaintiff owned a patent for a “fully braced” telescoping strut support system for portable conveyors used to stockpile rock, sand and other aggregate material. The plaintiff sued the defendant, a Cana-dian company, for patent infringement.

The defendant argued that the patent lawsuit was barred under the doctrine of claim preclusion. The plaintiff had suc-ceeded in protecting its registered trade-mark for “fully braced” in a 2009 action when the defendant sought to market fully braced technology in the U.S. The defendant argued that the prior trademark action precluded the plaintiff ’s patent in-fringement claim.

But the court concluded that the prior trademark infringement action did not

arise from the same operative facts for claim preclusion to apply.

“[C]laim preclusion does not arise mere-ly because the plaintiff was aware of inde-pendent facts that gave rise to a separate cause of action against the defendant at the time it brought suit. …

“In this case, the 2009 trademark action does not preclude [the plaintiff ’s] patent infringement claim because the two claims arise from clearly separate transactions. In other words, these separate cases under separate laws do not constitute the same cause of action,” the court said.

U.S. Court of Appeals, Federal Circuit. Su-perior Industries v. Thor Global Enterprises, No. 2011-1549. Nov. 27, 2012. Lawyers USA No. 993-3650.

Insurance exclusion bars coverage of truck crash

A “business use” exclusion in a trucking policy precluded coverage for a semi-trac-tor that was involved in an accident before the driver picked up a load, the Michigan Court of Appeals has ruled in revers-ing judgment.

The insurance company issued a sup-plemental “non-trucking use” policy to a trucking company. The policy excluded coverage for “bodily injury or property damage while a covered auto is used to carry property in any business or while a covered auto is used in the business of any-one to whom the auto is leased or rented.”

One of the trucking company’s drivers was involved in a car accident while driv-ing a semi-tractor without an attached trailer. The accident occurred a few miles from a freight yard where the driver had been dispatched to pick up a load.

After plaintiffs injured in the accident entered into consent judgments against other defendants, the insurance company became the target of a garnishment action to satisfy those judgments.

But the court here concluded that cov-erage of the personal injury claims was

barred by the business use exclusion in the insurance company’s policy.

“Since [the truck driver] was purposely driving to the yard to transport property, the accident occurred during an interval of time when the truck was employed for the purpose of carrying property in the

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The U.S. Supreme Court has issued a decision in the following case:

TAKINGS CLAUSEGovernment-induced flooding that

is temporary in duration is not auto-matically exempted from Takings Clause inspection.

U.S. Supreme Court. Arkansas Game and Fish Comm’n v. U.S., No. 11-597. Dec. 4, 2012. Lawyers USA No. 993-3653.

The U.S. Supreme Court has granted certiorari in the following cases:

FEDERAL PREEMPTIONDoes federal law preempt state law

design defect claims targeting gener-ic pharmaceutical products?

See “Justices to rule on preemp-tion of drug design defect claims” on page 1.

Mutual Pharmaceutical Co. v. Bartlett, No. 12-142. Certiorari grant-ed: Nov. 30, 2012. Ruling below: 678 F.3d 30 (1st Cir. 2012).

PATENT LAWAre human genes patentable?Assoc. for Molecular Pathology v.

Myriad Genetics, No. 12-398.Certio-rari granted: Nov. 30, 2012. Ruling below: 653 F.3d 1329 (Fed. Cir. 2011).

U.S. SUPREME COURT

LawyersUSARead more

case digests at lawyersusaonline.com



trucking business. This is not a case where the driver was engaged in an activity unre-lated to the business of transporting prop-erty, such as driving a truck on a personal matter, to which the exclusion would not apply,” the court said.

Michigan Court of Appeals. Hunt v. Dri-elick, No. 299405. Nov. 20, 2012. Lawyers USA No. 993-3646.

CRIMINALSearch of passenger area constitutional

Police did not violate the Fourth Amendment when they searched the inte-rior of a drug suspect’s car upon learning that his front seat passenger was on parole, the California Supreme Court has ruled in reinstating a conviction.

A police officer stopped the defendant’s automobile after observing him driving aimlessly through a condominium com-plex. When the officer asked for the de-fendant’s driver’s license, she observed abscesses on his arm, which she associ-ated with drug use. During the course of questioning, the officer learned that the defendant’s front seat passenger was on parole. Based on that information, the of-ficer commenced a search of the car. In the backseat area, the officer found a syringe cap in a woman’s purse, two syringes in a chips bag, and methamphetamine in a pair of shoes.

The defendant moved to suppress, but the state supreme court found that the search of the interior of the vehicle was reasonable under the Fourth Amendment.

“We hold that the Constitution permits a search of those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity. Additionally, the officer may search personal property located in those areas if the officer reason-ably believes that the parolee owns those

items or has the ability to exert control over them,” the court said.

California Supreme Court. State v. Schmitz, No. S186707. Dec. 3, 2012. Law-yers USA No. 993-3654.

Meth defendant entitled to jury instruction

A drug defendant was entitled to a “subjective” jury instruction on the issue of whether she reasonably should have known that the over-the-counter drugs she purchased were being used to manu-facture methamphetamine, the 9th Circuit has ruled in reversing a conviction.

The defendant was charged with violat-ing 21 U.S.C. §841(c)(2) by purchasing over-the-counter cold medications for the manufacture of methamphetamine. Under §841(c)(2), the government is required to prove that the defendant had “reasonable cause to believe” that the drugs were being used to manufacture methamphetamine.

At trial, the defendant requested a jury instruction specifying that “reasonable cause to believe” must be evaluated from her perspective, based on her knowledge and sophistication. The district court de-nied her request, instead instructing the jury that the question must be evaluated from the perspective of a hypothetical rea-sonable person.

But the 9th Circuit held that the de-fendant was entitled to her request-ed instruction.

“Under §841(c)(2), a jury must decide what the particular defendant on trial knew, and what that particular defendant had ‘reasonable cause to believe.’ The sci-enter requirement of §841(c)(2) is not sat-isfied if some hypothetical person would have had ‘reasonable cause to believe’ that cold pills would be used to make metham-phetamine. The jury must therefore be in-structed to consider the knowledge and so-phistication of the particular defendant on trial, not that of a hypothetical reasonable person not before the court,” the court said.

U.S. Court of Appeals, 9th Circuit. U.S.

v. Munguia, No. 10-50253. Nov. 27, 2012. Lawyers USA No. 993-3651.

Frisk during traffic stop unconstitutional

Officers violated the Fourth Amend-ment when they conducted a pat down during a traffic stop based on a generalized suspicion of illegal drug activity rather than a genuine concern for their safety, the 9th Circuit has ruled in reversing a conviction.

The defendant was a passenger in a vehi-cle stopped at a U.S. Border Patrol check-point about 100 miles from the Arizona/Mexico border. The defendant and the driver were asked to exit when a drug de-tection dog alerted to their vehicle. After a canine search failed to uncover drugs in the vehicle, officers conducted a pat down of the defendant and the driver. An initial pat down failed to reveal weapons or con-traband, but a second pat down revealed two bricks of marijuana taped to the de-fendant’s abdomen.

The defendant argued that the Terry frisks violated the Fourth Amendment because they appeared to be based on a generalized suspicion of drug activity and nervousness exhibited by the defendant and the driver, rather than a reasonable suspicion that they were armed and posed a threat.

The court agreed.“[T]he officers’ argument that their

safety was in danger is contradicted by the absence of any suspicious behavior directly attributable to the defendant, the scant ev-idence of drug possession prior to the frisk, the lack of immediate actions by officers to ensure safety, and the nonthreatening and compliant behavior of two teenagers, one of them a minor, surrounded by officers in an open area. … Accordingly, the frisk of the defendant was unconstitutional from its inception,” the court said.

U.S. Court of Appeals, 9th Circuit. U.S. v. I.E.V., No. 11-10337. Nov. 28, 2012. Law-yers USA No. 993-3647.


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Warrantless search of automobile upheld

Police didn’t violate the Fourth Amend-ment by conducting a warrantless search of a suspect’s automobile after discovering evidence of an illegal drug operation in his home, the 9th Circuit has ruled in revers-ing a suppression order.

A local official taking possession of the defendant’s home called police after dis-covering evidence of an illegal drug opera-tion. Police arrested the defendant at the scene when a background check indicated he had prior felonies and had broken state law by failing to register his address with local authorities. A search of the defen-dant’s person and home revealed $10,000 cash and significant quantities of drugs and drug paraphernalia.

Because the defendant had been ob-served loading household items into his car, which was parked nearby, police searched the vehicle and discovered a handgun and 250 grams of cocaine base.

The defendant moved to suppress the evidence found in his car, contending that the search did not fall within the automo-bile exception to the warrant requirement.

As a preliminary matter, the 9th Circuit rejected the defendant’s assertion that the state had waived its automobile exception argument by waiting to raise it until oral argument before the U.S. magistrate hear-ing the matter.

“Because the government raised the au-tomobile exception both orally and in its filed objections to the magistrate judge’s report and recommendation, the ‘district court had the opportunity to consider and decide the claim,’” the court said.

In addition, the court held that the war-rantless search was permissible under the automobile exception, explaining that the defendant “has accepted the magistrate judge’s finding that ‘law enforcement had probable cause to believe his vehicle may have contained evidence of a crime,’ a

finding that, on this record, has ample sup-port. Moreover, there is no dispute that the vehicle appeared to be readily mobile and was being used as a ‘licensed motor vehicle subject to a range of police regulation.’”

U.S. Court of Appeals, 9th Circuit. U.S. v. Scott, No. 11-10529. Nov. 26, 2012. Law-yers USA No. 993-3645.

Marijuana couldn’t be seized in ‘knock and talk’

Marijuana plants observed by police during a “knock and talk” were not subject to seizure under the plain view exception to the Fourth Amendment’s warrant re-quirement, the North Carolina Court of Appeals has ruled in reversing a conviction.

Police were dispatched to conduct a knock and talk after receiving an anony-mous tip that the defendant was growing marijuana at his home. The defendant’s home was set back from the road. After proceeding a tenth of mile up a driveway to the house, an officer observed marijuana plants growing in the defendant’s backyard.

Police seized the plants and used them as evidence to obtain a search warrant. Of-ficers discovered additional evidence of an illegal drug operation when they executed the warrant. The defendant moved to sup-press, contending that the plain view doc-trine did not justify the seizure of the mari-juana plants from his backyard.

The court agreed, rejecting the state’s contention that the seizure was justified because the officers were conducting a law-ful knock and talk.

“[W]e decline to adopt the state’s argu-ment that the initiation of a valid ‘knock and talk’ inquiry gave [police] a lawful right of access to walk across defendant’s backyard in order to seize the plants. If we were to adopt such an approach, it would be difficult to articulate a limiting prin-ciple such that ‘knock and talk’ investiga-tions would not become a pretense to seize any property within the home’s curtilage, so long as that property otherwise satisfied

the remaining prerequisites for seizure un-der the plain view doctrine,” the court said.

North Carolina Court of Appeals. State v. Grice, No. COA12-577. Nov. 20, 2012. Lawyers USA No. 993-3644.

EMPLOYMENTJury must decide Title VII deadline question

A jury rather than the trial judge should have decided factual disputes regarding whether a Title VII plaintiff timely filed his administrative complaint with the EEOC, the 7th Circuit has ruled in revers-ing a dismissal.

The plaintiff sued Home Depot for na-tional origin discrimination under Title VII, alleging the company refused to hire him because he’s Albanian.

Home Depot argued that the lawsuit was time-barred because the plaintiff failed to file his administrative complaint with the EEOC within 300 days of when a com-pany official called to tell him he would not be hired. The plaintiff denied receiving a call from Home Depot and argued his complaint was timely because he learned he would not be hired at a later date.

In advance of trial, the district court held an evidentiary hearing to address the fac-tual disputes regarding the timeliness of the plaintiff ’s administrative complaint. At the conclusion of the hearing, the dis-trict court dismissed the plaintiff ’s lawsuit based on Home Depot’s statute of limita-tions defense.

But the 7th Circuit decided that the plaintiff was entitled to have a jury resolve the factual disputes concerning Home De-pot’s defense.

“Statute of limitations is a defense, and in a case in which a party is entitled to, and demands, a jury trial, defenses are tried to the jury along with the case in chief,” the court said.

U.S. Court of Appeals, 7th Circuit. Begolli




v. Home Depot, No. 12-1875. Nov. 29, 2012. Lawyers USA No. 993-3648.

PERSONAL INJURY & TORTDrug company liable for Levaquin plaintiff’s injuries

The pharmaceutical company that mar-kets Levaquin is liable for Achilles tendon injuries suffered by a 76-year-old man after taking the prescription antibiotic, the 8th Circuit has ruled.

In 2005, the plaintiff suffered a rup-ture of his left Achilles tendon and a par-tial tear of his right Achilles tendon after taking Levaquin in combination with a corticosteroid as prescribed by his doctor. The plaintiff sued Ortho-McNeil-Janssen Pharmaceuticals, which markets Levaquin in the U.S. According to the plaintiff, the drug company failed to adequately warn of the risk of tendon rupture in elderly pa-tients who take Levaquin in combination with corticosteroids.

The plaintiff ’s lawsuit was the first bell-wether case to be tried in the Levaquin multidistrict litigation. A jury found the drug company primarily liable and award-ed the plaintiff $630,000 in compensa-tory damages and $1.1 million in punitive damages. (See “Johnson & Johnson loses first Levaquin case,” Lawyers USA, Dec. 20, 2010. Search term for Lawyers USA’s website: Schedin.) The drug company ar-gued that it discharged its duty to warn by including a tendon warning in a 15-page insert added to Levaquin packaging in 2001, noting that that warning also ap-peared in the Physicians’ Desk Reference (PDR) commonly used by doctors.

But the court concluded that “there was sufficient evidence for a reasonable jury to find [the drug company] should have known that the package insert and PDR warnings were not adequately communi-cating the 2001 warning to physicians.”

While the court ruled for the plaintiff on the issue of liability, it concluded the evi-dence failed to support the jury’s award of punitive damages.

“As a matter of law, the record evidence failed to establish [that the drug company] deliberately disregarded the risk of tendon injuries in elderly patients taking cortico-steroids,” the court said.

U.S. Court of Appeals, 8th Circuit. Schedin v. Ortho-McNeil-Janssen Pharmaceuticals, No. 11-3117. Nov. 30, 2012. Lawyers USA No. 993-3655.

Asbestos manufacturer may have immunity

A manufacturer that supplied turbines to the U.S. Navy may be immune from a former seaman’s asbestos claims, the 7th Circuit has ruled in reversing judgment.

CBS’s predecessor-in-interest, Westing-house, sold turbines to the U.S. Navy be-tween 1946 and 1971. The plaintiff worked in Navy yards during those years, first as a seaman, and later as a civilian contrac-tor. In 2012, the plaintiff filed a product liability suit against CBS in Illinois state court, alleging that he developed mesothe-lioma due to his exposure to asbestos in the Westinghouse turbines.

CBS removed the lawsuit to federal court under the federal officer removal statute, which permits removal of certain suits where a defendant that acted under a federal officer has a colorable federal de-fense. The plaintiff argued that removal was improper because he only sued CBS for failing to warn about the dangers of asbes-tos, for which there is no federal defense.

The 7th Circuit disagreed, explaining “CBS’s relationship with [the plaintiff ] arises solely out of CBS’s duties to the Navy. It also has a colorable argument for the government contractor defense, which immunizes government contractors when they supply products with specifications approved by the government.”

U.S. Court of Appeals, 7th Circuit. Ruppel

v. CBS, No. 12-2236. Nov. 30, 2012. Law-yers USA No. 993-3652.

Stryker not strictly liable for design defect

Medical device makers could not be held strictly liable for an alleged design defect in a surgically implanted prosthetic device, the California Court of Appeal has ruled in affirming a summary judgment.

The plaintiff was diagnosed with cancer in his left thigh bone. A surgeon replaced the middle portion of the plaintiff ’s femur with a prosthetic device allegedly designed and/or manufactured by medical device makers Stryker Corp. and Howmedica Osteonics. The prosthesis needed to be replaced two years later when doctors de-tected a fatigue fracture.

The plaintiff sued Stryker and Howmed-ica under various product liability theories.

The court held that state law did not per-mit strict liability claims against the medi-cal device makers based on design defect.

“It is undisputed that the prosthesis here was both ordered by a physician and surgically implanted by a physician, and it cannot reasonably be disputed that the im-plant was available only through the ser-vices of a physician. …

“The public interest in the development, availability and affordability of implanted medical devices justifies an exemption from design defect strict products liabil-ity for all implanted medical devices that are available only through the services of a physician,” the court said.

However, the court concluded that the declaration of the plaintiff ’s expert was wrongly excluded by the trial judge. Be-cause the declaration created jury issues regarding the plaintiff ’s manufacturing defect and negligence claims, the court re-manded the case for trial on those issues.

California Court of Appeal, 2nd Dis-trict. Garrett v. Howmedica Osteonics, No. B234368. Nov. 27, 2012. Lawyers USA No. 993-3649.

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Lawyers USA · 2020-03-21 · News Page 2 LAWYERS USA WEEKLY UPDATE | SATURDAY, DECEMEBER 8, 2012 offer of judgment in the amount of $7,500 for lost wages and other fees, which she