Justia U.S. 7th Circuit Court of Appeals Opinion SummariesArticles Posted in Products Liability
Kaiser v. Johnson & Johnson and Ethicon, Inc.
Kaiser had surgery to implant the Prolift Anterior Pelvic Floor Repair System, a transvaginal mesh medical device that supports the pelvic muscles. A few years later, Kaiser began experiencing severe pelvic pain, bladder spasms, and pain during intercourse. Her physician attributed these conditions to contractions in the mesh. Kaiser had surgery to remove the device, but her surgeon could not completely extract it and informed her that the complications she was experiencing were likely permanent. Kaiser sued Ethicon, Prolift’s manufacturer, under the Indiana Products Liability Act. A jury found Ethicon liable for defectively designing the Prolift device and failing to adequately warn about its complications and awarded $10 million in compensatory damages; the judge reduced a punitive award to $10 million. The Seventh Circuit affirmed, rejecting Ethicon’s claim of federal preemption. The requirements of the FDA’s premarket-notification process do not directly conflict with Indiana law. A reasonable jury could conclude that Prolift was unreasonably dangerous and could credit the physician’s assertion that additional warnings about complications would have led him to choose a different treatment plan. The court rejected challenges to the damages and to jury instructions. Seventh Circuit precedent interprets the Indiana Product Liability Act to require a plaintiff in a design-defect case to produce evidence of a reasonable alternative design for the product but the Indiana Supreme Court disagreed in 2010. The state supreme court’s decision controls on a matter of state law. View "Kaiser v. Johnson & Johnson and Ethicon, Inc." on Justia Law
Amling v. Harrow Industries, LLC
Amling began working in the horticulture industry in 1965 and continued in that career for the rest of his working life. At one point, Robert worked for National Greenhouse, whose products allegedly contained asbestos. National’s assets and liabilities were transferred to Harrow. In 1990, Harrow executed an asset‐purchase agreement with Nexus, transferring all of National’s assets and some of its liabilities to Nexus. Amling was diagnosed with mesothelioma in 2015. The Amlings sued Harrow, Nexus, and others in state court and, while that case was stayed, sought a declaratory judgment in federal court that under the terms of the 1990 agreement, Harrow, not Nexus or any other entity, is liable for National Greenhouse’s torts alleged in the Amlings’ state complaint. The district court dismissed the suit. The Seventh Circuit affirmed. It is virtually certain that the state suit will answer the question presented by the federal suit: whether under the terms of the asset‐purchase agreement Harrow or Nexus could be liable for their injuries. That fact makes this a live controversy but simultaneously justifies the district court’s sound exercise of its discretion in deciding not to issue a declaratory judgment. View "Amling v. Harrow Industries, LLC" on Justia Law
Timm v. Goodyear Dunlop Tires North America, Ltd.
Donald and Mary Timm sustained serious injuries in a horrific motorcycle accident. A few months later, they received notice that the helmets they were wearing at the time of the accident were recalled. Believing defects with the motorcycle and its rear tire caused the accident—and that their injuries were especially severe because of a defect with their helmets—the Timms brought a products liability action under Indiana law against defendants involved in the sale and manufacture of the motorcycle, its rear tire, and the helmets. Concluding that the Timms failed to present admissible expert testimony to support their claims, the district court entered summary judgment for the defendants. The Seventh Circuit affirmed. The Timms did not present any expert testimony to show that, because of a defect with their helmets, their injuries were worse than they otherwise would have experienced in such a severe motorcycle crash. The court rejected the Timms’ claims alleging negligent recall and failure to comply with federal safety standards, concluding that the Indiana Products Liability Act permits neither claim. The court properly excluded expert testimony against Harley-Davidson and Goodyear as lacking the reliability required by Federal Rule of Evidence 702 and “Daubert.” View "Timm v. Goodyear Dunlop Tires North America, Ltd." on Justia Law
Clark v. River Metals Recycling, LLC
Clark was badly injured as he was getting off a car-crushing machine--a mobile RB6000 Logger/Baler--which was used by his employer, Thornton Auto Crushing. He sued both the crusher’s manufacturer, Sierra, and the company that had leased it to Thornton, River Metals, asserting that they were liable to him under Illinois tort law because it was defectively designed. The district court granted summary judgment in both defendants’ favor after striking the testimony from Clark’s expert. The Seventh Circuit affirmed. The district court’s decision to exclude the testimony represented a reasonable assessment of the proposed evidence. It found the expert’s methodology to be unclear and conclusory. There was no need for a hearing; the report was just five pages long, including the expert’s discussion of the facts, his description of the machine, and his recitation of the Operator’s Manual. His analysis covers one page and misstates a standard concerning equipment safeguards. The case was not one that could be decided based on common experience. View "Clark v. River Metals Recycling, LLC" on Justia Law
Duncan Place Owners Associatio v. Danze, Inc.
Seattle’s Duncan Place condominium complex was built in 2009, with Danze faucets in all 63 units. The faucets’ water hoses can corrode and crack in normal use. Several faucets failed, causing property damage and replacement costs. Danze’s “limited lifetime warranty” promises to replace defective parts. Danze refused to repair or replace the faucets. The Owners Association filed suit on behalf of itself, unit owners, and a proposed nationwide class, asserting claims under Washington law. The judge rejected all claims, holding that Washington’s independent-duty doctrine barred claims of negligence and strict product liability; the unjust-enrichment claim was premised on fraud but did not satisfy the FRCP 9(b) heightened pleading requirements. A Washington claim for breach of an express warranty requires that the plaintiff was aware of the warranty. Duncan Place was unable to make that allegation in good faith with respect to any unit owners.The Seventh Circuit reversed in part. The Washington Product Liability Act subsumes the negligence and strict-liability claims; the “independent duty doctrine” generally bars recovery in tort for direct and consequential economic losses stemming from the product’s failure (damages associated with the “injury” to the product itself) but does not bar recovery for damage to other property. Duncan Place alleged in general terms that the defective faucets caused damage to other condominium property, so the WPLA claim is not entirely blocked by the independent duty doctrine. View "Duncan Place Owners Associatio v. Danze, Inc." on Justia Law
Robinson v. Davol, Inc.
Bard manufactures a surgical patch, consisting of two pieces of mesh that surround a flexible plastic ring. During a hernia repair, the patch is folded to fit through a small incision, then the plastic ring springs back into its original shape and flattens the mesh against the abdominal wall. Bard recalled several versions of the patch in 2005-2006 following reports that the plastic ring was defective. Sometimes the ring broke, exposing a sharp edge that could perforate the patient’s intestines. Other times the ring caused the patch to bend and warp, exposing the patch’s adhesive to a patient’s viscera. Before the recall, Bowersock underwent hernia repair surgery, involving a Bard patch. Roughly one year later, she died of complications arising from an abdominal-wall abscess. Her estate sued. Unlike defective patches in other injured patients, Bowersock’s patch did not adhere to her bowel or perforate her organs. Plaintiff's expert tried to present a new theory of causation: the patch had “buckled,” forming a stiff edge that rubbed against and imperceptibly perforated her internal organs. The court excluded that testimony, finding the “buckling” theory not sufficiently reliable. The Seventh Circuit affirmed summary judgment for the defense. The novel theory of causation was not peer-reviewed, professionally presented, consistent with Bowersock’s medical records or autopsy, or substantiated by other cases. View "Robinson v. Davol, Inc." on Justia Law
Aregood v. Givaudan Flavors Corp.
More than 20 current and former employees at ConAgra’s Rensselaer, Indiana microwave popcorn plant sued various manufacturers and suppliers of butter flavorings that contained the chemical diacetyl, which if inhaled can cause a respiratory disease called “popcorn lung.” All defendants were dismissed except Givaudan. a long‐time supplier to the plant, which faced claims under Indiana product liability law for strict liability, failure to warn, negligence, and design defect. The district court granted Givaudan summary judgment in full. The Seventh Circuit affirmed as to most of the claims but remanded the claim that Givaudan failed to warn plaintiffs that its products contained a dangerous substance. Whether an exception to that duty to warn—the sophisticated intermediary doctrine— applies to the employer ConAgra and exonerates Givaudan is a fact question. View "Aregood v. Givaudan Flavors Corp." on Justia Law
Dolin v. GlaxoSmithKline LLC
In 2010, a doctor prescribed Paxil, the brand‐name version of paroxetine, to treat Stewart’s depression and anxiety. His prescription was filled with generic paroxetine manufactured by another company (not a defendant). Days later, Stewart committed suicide at age 57. He had paroxetine in his system. GSK manufactured brand‐name Paxil and was responsible under federal law for the content of the drug’s label. Labels for paroxetine and similar antidepressant drugs then warned that they were associated with suicide in patients under the age of 24 but did not warn about any association between the drugs and an increased risk of suicide in older adults. It is virtually impossible to sue generic drug manufacturers for failure to warn because they are required to use the FDA-approved label used by the brand-name (original) manufacturer. Only the brand-name manufacturer can seek FDA approval to change the label. Stewart’s wife sued GSK, alleging that it negligently failed to include warnings that paroxetine was associated with suicide in patients older than 24. The jury awarded her $3 million. The Seventh Circuit reversed, holding that federal law prevented GSK from adding a warning about the alleged association between paroxetine and suicides in adults. The FDA repeatedly told GSK not to add a paroxetine‐specific suicide risk warning. View "Dolin v. GlaxoSmithKline LLC" on Justia Law
Dalton v. Teva North America
Dalton’s doctor implanted Teva’s Intrauterine Device (IUD) in her uterus for long-term birth control. Dalton became dissatisfied with the IUD and asked her doctor to remove it. The doctor did so by grasping its strings with a forceps and pulling the IUD down. A piece broke off either before or during the removal and lodged in her uterus. Dalton’s doctor advised that removing the remaining portion of the IUD would require a hysterectomy. Dalton sued Teva, asserting “strict liability,” “strict products liability failure to warn,” and “manufacturer’s defect.” Dalton failed to timely disclose any expert witness and serve the expert witness report required by FRCP 26(a)(2). The district court granted Teva summary judgment. The Seventh Circuit affirmed. Claims under the Indiana Products Liability Act, which governs all consumer actions against a manufacturer for physical harm caused by a product, require proof that the injury was proximately caused by whatever defect or breach of duty underlies the claim. The Act requires expert testimony when an issue “is not within the understanding of a lay person.” Dalton did not establish how a lay juror faced with a broken IUD could identify the cause of the break—maybe the IUD was damaged after coming into the possession of the physician, maybe human error resulted in damage during implantation or removal. This case is far removed from situations in which a causation issue is so obvious that a plaintiff may forgo expert testimony. View "Dalton v. Teva North America" on Justia Law
Joas v. Zimmer, Inc.
Joas underwent knee replacement at a Wisconsin hospital and received a Zimmer NexGen Flex implant. Within a few years, he began experiencing pain in his new knee. X-rays confirmed that the implant had loosened and required a surgical fix. Joas brought multiple claims against Zimmer. His case was transferred to a multidistrict litigation, where it was treated as a bellwether case. Applying Wisconsin law, the presiding judge granted Zimmer summary judgment. The Seventh Circuit affirmed, declining to reinstate a single claim based on a theory of inadequate warning. The court predicted that the Wisconsin Supreme Court would follow the majority of states and adopt the “learned intermediary” doctrine, which holds that the manufacturer of a medical device has no duty to warn the patient as long as it provides adequate warnings to the physician. In addition, Joas has not identified any danger that Zimmer should have warned him about. Joas has no evidence to support causation. Joas did not select the NexGen Flex implant, so the information would not have caused him to change his behavior. His doctor selected the product, making his decision based on his own past experience, not on any marketing materials or information provided by Zimmer. View "Joas v. Zimmer, Inc." on Justia Law