Tuesday, February 26, 2013

A Short and Sweet Preemption Decision (and Continued Oscar Coverage)

            Yesterday we gave you our take on this year’s Best Picture winner, so today we thought we’d give you our opinion on the Oscars themselves (not sure that this represents the opinion of our collective group, but I have the floor today and I’m sure McConnell will fill in what I missed or got “wrong”). 
            Overall assessment – pretty good.  Let’s start with the obvious, the host.  Traditionally comedians have made for better Oscar hosts than actors.  We still can’t quite erase from our memory the James Franco/Anne Hathaway debacle of two years ago.  And it would be hard not to include Billy Crystal and Steve Martin on a short list of best hosts (we’ll also admit to being disappointed by Ellen DeGeneres and Chris Rock, so being a stand-up doesn’t automatically make you a good host).  That brings us to Seth MacFarlane who doesn’t get our vote for the best, but also wasn’t the worst.  He’s a quasi-performer who is more known for his funny voices and hilarious push-the-envelope writing.  So, we expected some good jokes and production pieces, which we got.  We are still chuckling over the fleeing Von Trapp Family Singers.  And the Captain Kirk opening number had some good moments, but was way too long.  We also expected some jokes that some people were going to find offensive.  He delivered on that one too.  The bottom line – he was mostly funny, definitely provocative, and attracted a younger audience.  We think that’s what the producers were going for and they got it.    
            We also have to give the producers kudos for featuring movie music throughout the show.  We didn’t just get to hear this year’s nominees, but some great classics too.  As if Shirely Bassey and Barbara Streisand weren’t enough – the only thing that could possibly have followed Jennifer Hudson’s re-creation of her Oscar winning performance was the entire cast of Les Miserables.  Great use of the Jaws theme music too.  If only that worked in real life.   
            As always, the attempt at witty banter between presenters was lackluster at best.  The worst of the evening was delivered by two strong comedic actors, Paul Rudd and Melissa McCarthy.  What was that?  Even the Avengers were funnier.  And, finally the highs and lows of acceptance speeches.  Our favorite goes to Daniel Day Lewis – and by now he should be pretty good at this.  He was funny and warm and sincere.  The worst – Anne Hathaway.  This was her big moment and it simply fell flat.  Her performance of “I Dreamed a Dream” is probably the most heart-breaking, gut-wrenching four minutes in film last year.  So, while we don’t need tears or jokes, some emotion as she achieved her dream would have been nice. 
            Now, all that has absolutely nothing to do with today’s case.  So, we’ll manufacture a segue much like those hackneyed bits of filler all the award shows are guilty of clinging to. The presenters can’t deliver them and so all they do is add length to shows that are always exceedingly too long.  We know this could be considered the pot calling the kettle.  After all, lawyers write documents called briefs that are more often than not anything but.  As a group we have been known to be occasionally long-winded, or at least never at a lack for words.  But even we can appreciate brevity.  That something shorter can have a greater impact due to simplicity and directness. 
            While succinctness didn’t appear to have been a main concern for the producers of the Oscars, we tend to like it when it is for the courts.  The decision in Anderson v. Boston Scientific Corporation, 2013 U.S. Dist LEXIS 22982 (S.D. Ohio Feb. 19, 2013) is just such a short, direct – and in our opinion – correct ruling.  So, we’ll keep our summary equally short and direct.
            Following implantation of a spinal cord stimulator, plaintiff suffered an infection that required additional surgery.  Id. at *1-2.  Plaintiff filed traditional product liability claims against the medical device manufacturer alleging that a flaw in the manufacture or design of the device was to blame for her injuries.  Id. at *2.  She also brought suit against one of the manufacturer’s employees who had direct contact with plaintiff following her surgery.  The allegation is that the employee provided misinformation which led to a delay in plaintiff seeking medical attention for her infection.  Id. 
            Defendants moved to dismiss on two grounds – failure to satisfy the federal pleading requirements, what we refer to as the Twiqbal pleading standard, and preemption.  First, Anderson sets out a few good Twiqbal sound bites:
A motion to dismiss is . . . a vehicle to screen out those cases that are impossible as well as those that are implausible.  Id. at *4.
The admonishment to construe the plaintiff's claim liberally when evaluating a motion to dismiss does not relieve a plaintiff of his obligation to satisfy federal notice pleading requirements and allege more than bare assertions of legal conclusions.  Id. at *5.
Then, as to the complaint at hand and the allegations against the company representative, the court determined that with a “very generous reading,” plaintiff may have alleged enough to pass the test on duty and breach of duty, but that the complaint completely lacked any facts supporting even a plausible inference of causation.  Id. at *6-7.  Plaintiffs argued that they need discovery to obtain such facts, but the court quickly closed down that argument.  Id. at *8 (“discovery cannot be used as a fishing expedition to uncover the facts necessary to support the causes of action presented in the complaint”). 
            The court moved on to dismiss the claims against the manufacturer just as quickly and efficiently.  The product at issue is a premarket approved (“PMA”) medical device and therefore plaintiff’s claims are preempted under Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) (state law claims that impose requirements “different from or in addition to” FDA’s PMA requirements are preempted).   Since plaintiff Anderson’s state law claims would require her “to show that the stimulator should have been manufactured, designed, inspected and/or maintained in a manner different from that approved by the FDA,” they are preempted.  Id. at *10. 
            Plaintiff’s two arguments to support her claims were that her “parallel violation claims” (claims premised on a violation of FDA regulations) aren’t preempted and that “Congress did not intend to foreclose all recourse to plaintiffs.”  Id. at *10-11.  However, plaintiff didn’t plead a parallel violation claim:
there is nothing in the complaint that even approximates an allegation, let alone anything providing factual support for that allegation, that the spinal cord stimulator deviated from FDA requirements.
Id. at *11.  And as to her second argument, yes they did.  Plaintiff’s “this isn’t what Congress intended” argument was raised by the Riegel dissent and dispensed with by the Riegel majority.  Id. at *12-13.  Enough said. 
            Plaintiffs are getting a second chance and we won’t be surprised if we see an attempt at more fulsome allegations against the device representative and a parallel violation claim. So, unlike the Oscars for which we need to wait a whole year for a new host and a new slate of one-liners, plaintiff Anderson has 30 days to fix what was broken and try it again.  

1 comment:

tomas adison said...

Glad to see that. I will be back again to read your post.
read more ...