Drug and Device Blog
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Dechert LLP
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The Dregs - The Ten Worst Drug/Medical Device Decisions of 2011
Thursday, December 22, 2011
Here we go again. At the end of every year, we look back over the past twelve months – the
highs and the lows – the thrill of victory and the agony of defeat. We always start with the
agony, however, and this year’s no exception. Despite our best efforts, our side didn’t win
everything everywhere. So as we’ve done for the past four years, we’re handing out lumps of
coal right before Christmas, specifically the ten worst prescription medical product liability
decisions of 2011. These noxious weeds seem to pop up all over. We have federal cases and
state cases. We’ve been burned, of course, by hellhole jurisdictions, but also at least as much
(if not necessarily as frequently) in jurisdictions that, until now, hadn’t earned that sobriquet.
Like last year, there’s still a week and a half left for courts to continue plumbing the depths.
There could be a new number one before the end of the year. But, frankly, we want to get this
over with before that vulture over there keels over and falls off its dung heap. The last week of
the year we reserve for the fun stuff, that is to say our top ten best decisions.
So let’s take the plunge – holding our noses all the way. Here are our ten levels of hellhole,
our bottom ten worst judicial drug and device decisions of 2011.
1. DiCosolo v. Janssen Pharmaceuticals, Inc., 951 N.E.2d 1238 (Ill. App. 2011). The worst
drug/device product liability decision of 2011 earned its dubious distinction by encouraging
plaintiffs to lose the product that allegedly caused their injuries. DiCosolo involved a pain
killing patch used by a drug addicted (8 different drugs in the bloodstream) decedent whose
death was initially ruled a suicide (before the plaintiff's lawyer prevailed on the coroner to alter
his findings). The plaintiff had used recalled patches, but the patch found on the decedent's
body was tested and unequivocally did not exhibit any sign of the defective condition that
prompted the recall. No worries, held DiCosolo, the plaintiff can sue over the patch before that
– the so-called "penultimate patch – that conveniently had been thrown away and was
unavailable for similar testing. A suspiciously timed affidavit (after a long period of silence) by
the financially interested plaintiff just happened to remember seeing the problem that prompted
the recall present in the discarded patch. Thus the plaintiff was allowed to bring in the recall to
the jury's attention, even though only a minute fraction of the recalled product had the defect.
That fraction included the only patch that could be tested (all others having since gone
