Going Viral − The Ten Worst Prescription Drug/Medical Device Decisions Of 2020

• Published date: 28 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Biotechnology & Nanotechnology
• Law Firm: Reed Smith
• Author: Mr James Beck

Once again we undertake our annual task of sorting through the worst decisions of the year in prescription medical product liability litigation. These are the true superspreaders of litigation against our clients, extending the contagion of non-socially distanced litigation tourism and other infectious forms of attorney-solicited lawsuits far and wide, to the detriment of almost everyone else. These cases only go to show that there is no vaccine yet against FDA second-guessers, science-denying experts, and novel liability theories. Nor have preventive measures against forum shopping yet proved sufficiently efficacious.

In this vein, we note that not since the mass vaccination litigation of the 1960s has it been possible to produce a vaccine against the emergence of a new contagion without an accompanying grant of tort immunity to keep the ever broadening pandemic of product liability litigation at bay. The extraordinary speed with which COVID-19 vaccines may well have positive correlation with the broad tort immunity conferred by the PREP Act. This year's decisions only further demonstrate the need for such litigation countermeasures to be expanded to protect other examples of life- and health-saving drugs and medical devices.

One thing for certain: a lot of the names frequently found on the right side of the "v." are heavily involved in research and development of vaccines and other products to reduce the impact of COVID-19 on our society. We somehow doubt that any similar contributions will be forthcoming from AAJ, Public Citizen, or any other name representing the other side of the "v." Instead, they will be doing everything they can to circumvent, criticize, collaterally attack and otherwise burden the efforts of everyone trying to combat the current pandemic.

That's what they do, and unfortunately, the rest of this blogpost demonstrates that they are very good at it.

And now, we present our fourteenth annual description of the ten worst prescription medical product liability litigation decisions. Occasionally, we get hit with eleventh-hour significant decisions (like the giant lump of coal California gave us on December 22, 2017 (innovator liability decision, T.H. v. Novartis, 407 P.3d 18 (Cal. 2017), that became our second #1 worst decision that year. Barring some similar catastrophe - unlikely, but this is 2020, after all − we're not planning on any more unpleasantness this year. If any of these legal nemeses is yours, we sympathize, having been in that position ourselves (see 2013-2). The only positive thing we can say is wait till next week, when we review our top ten best decisions.

1. Hammons v. Ethicon, Inc., ___ A.3d ___, 2020 WL 6155256 (Pa. Oct. 21, 2020). The judiciary of Bexis' home town of Philadelphia, PA, along with the Pennsylvania Supreme Court itself is currently the nation's #1 Judicial Hellhole according to ATRA, and this case is one of the reasons why. In Hammons, the Pennsylvania Supreme Court signaled - no, broadcast - that the litigation tourist welcome mat remains out in the Keystone State to any plaintiff from anywhere in the country. Hammons reached this result by bluntly refusing (or "openly defied" in ATRA's description) to follow the United States Supreme Court's holding in BMS ( 2017+1) that "[w]hat is needed [for specific personal jurisdiction] is a connection between the forum and the specific claims at issue." Instead, Hammons explicitly relied on the lone dissent in BMS, and chose not to follow the "specific claims" limitation imposed by BMS "absent further clarification from the High Court." Thus, an Indiana plaintiff with no connections to Pennsylvania could sue there because the defendant contracted out one step of the manufacturing process to an independent Pennsylvania company even though that company was immune from suit and plaintiff was not claiming that the claims she pursued had anything to do with that aspect of the manufacturing process. Any plaintiff from any state similarly could claim the same generalized contacts, which is precisely what has happened in...