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Drug and Medical Device WHEN IT COUNTS

Nearly 80 of the 180 litigators in Barnes & Thornburg's Litigation Department are dedicated specifically to medical device, drug, toxic tort, and mass tort litigation. We have experience managing products liability cases for Fortune 500 companies regionally and nationally, and have served as national litigation counsel in matters across the U.S. and in multiple foreign jurisdictions. We also regularly develop case management strategies, with a focus on early case assessment.

Our experience in the drug and medical device industry includes:

  • National counsel for nearly 30 years for one of the world's largest medical device companies and its cutting-edge technology. Cases typically involve complex issues of design, manufacture, biomechanics, tribology, metallurgy, materials science, failure analysis, issues of federal preemption and applying Daubert or Frye to the medical device arena
  • Defense of more than 1,000 medical device products liability actions filed in state and federal courts in 49 states and in foreign jurisdictions
  • Trial counsel in high-stakes drug and medical device litigation across the country
  • Trial counsel on medical device multidistrict litigation
  • Litigation counsel to several of the nation's largest drug manufacturers in individual cases, mass torts and multidistrict litigation
  • Conducting and assisting with internal investigations and addressing corporate and white collar crime issues

Barnes & Thornburg's drug and medical device practice is uniquely positioned to address clients- needs in an efficient, economical and results-driven manner through effective early case assessment, budgeting and case management.

Our experience managing complex litigation and discovery issues helps us prepare clients for even the most document-heavy litigation. Barnes & Thornburg's litigation teams have experience with virtually every injury claim and defense of class actions, as well as the coordination of lawsuits pending in multiple jurisdictions, defense of multidistrict litigation, and patent infringement and other intellectual property litigation.

Practice Leaders

James F. Murdica

Drug and Medical Device Litigation Co-Chair

Chicago, Los Angeles, New York

P 312-214-4869

F 312-759-5646

Kelley Olah

Kelley S. Olah

Drug and Medical Device Litigation Co-Chair

Los Angeles

P 310-284-3787

F 310-284-3894

  • Barnes & Thornburg attorneys successfully prosecuted a fee waiver claim in a declaratory judgment action in which a small pharmacuetical company sought to have a court declare that it qualified for a fee waiver under the FDCA. The fee waiver should have been applied to Client's new drug because Client's business met the statutory guidelines for a "small business" under the Act and the drug application in question was the first one submitted by the company. The FDA moved to dismiss the claim, but the court held that Client was entitled to relief under the Act and granted judgment to Client. Winston Labs., Inc. v. Sebelius, No. 1:09cv4572 (N.D. Ill., filed July 29, 2009).
  • A Barnes & Thornburg attorney represented a global automobile manufacturer as a member of the trial team in a case in the Superior Court of California. The case involved allegations that the plaintiff's mesothelioma was caused by exposure to asbestos products manufactured by the auto manufacturer. The client obtained a defense verdict, which was named one of the Top Defense Verdicts of 2011 by The Daily Journal. Morrison v. Alfa Laval, Inc., Case No. BC441029, Superior Court of California, County of Los Angeles. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney represented a global automobile manufacturer in an asbestos case in Los Angeles Superior Court where the surviving spouse and sons of Mr. Goebel alleged that the auto manufacturer was responsible for Mr. Goebel’s pleural mesothelioma and death because he was exposed to asbestos-containing automotive products, such as brake pads. The client prevailed obtaining a defense verdict after a six-week jury trial. Goebel v. Ford Motor Company, Case No. BC390954, Superior Court of California, County of Los Angeles. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney successfully defended client in a trademark case for psoriasis ointment. Case settled favorably for the client. Sirius Labs Inc. v. Rising Phar Inc., No. 1:03cv6965 (N.D. Ill., filed Oct. 1, 2003).
  • Barnes & Thornburg attorneys serve as national litigation counsel for a medical device manufacturer and seller in nationwide litigation involving strict liability, warranty, negligence and fraud claims.
  • Barnes & Thornburg attorneys served as coordinating counsel for Johnson & Johnson's DePuy Orthopedics Inc. in an eight-week bellwether trial before a federal jury in Dallas. DePuy prevailed and was cleared of the allegations that it manufactured a dangerous and defective metal-on-metal hip implant. This was the first trial in the litigation in which more than 7,000 cases are consolidated in a multi-district litigation (MDL) pending in Dallas. Barnes & Thornburg is coordinating counsel for the MDL.
  • Barnes & Thornburg attorneys served as national defense counsel for an insulin infusion pump manufacturer and have handled a series of medical device cases involving claims of alleged product malfunctions.
  • Client pharmaceutical manufacturer obtained summary judgment in case alleging that a vial of insulin plaintiff purchased was super-potent, causing him to experience severe hypoglycemia and suffer permanent cognitive impairment.
  • In DePuy Orthopaedics, et al. v. Travis Brown, et al., Case No. 49A02-1304-CT-00332 (Ind. Ct. App. May 30, 2014), the Indiana Court of Appeals reversed a decision from the Marion County Superior Court denying a forum non conveniens motion in a products liability action brought in Indiana by nineteen non-Indiana plaintiffs. The plaintiffs, who were residents of Virginia and Mississippi, were implanted with a hip prosthesis in surgeries that took place in either Mississippi or Virginia. The prosthesis was designed and manufactured in Leeds, England. Defendants filed a motion to dismiss under Indiana Trial Rule 4.4(C), arguing that Marion County, Indiana is not a convenient forum in which to litigate these claims. The trial court denied the motion, but granted Defendants’ motion for interlocutory appeal. On May 30, 2014, the Indiana Court of Appeals reversed the trial court, noting that the inconvenience of securing out-of-state non-party witnesses and other discovery, the conflict in products liability law among Indiana, Virginia and Mississippi, and the availability of a more convenient forum all warranted dismissal of plaintiffs’ claims. Plaintiffs have petitioned the Indiana Supreme Court for review.
  • On Sept. 4, 2008, the Maryland Court of Appeals affirmed the entry of summary judgment for firm client, Eli Lilly and Company, in a pharmaceutical failure-to-warn case. The plaintiffs were the surviving spouse and children of a driver who was killed in a collision on the Capitol Beltway in Washington, D.C. The collision was caused by a long-term diabetes patient who experienced a severe hypoglycemic episode and lost consciousness while driving. The Court of Appeals unanimously affirmed the trial court's entry of summary judgment on the grounds that Lilly did not owe a duty to warn persons who did not use its drugs, rejecting the plaintiffs' "bystander liability" theory. Barnes & Thornburg LLP attorneys argued the summary judgment motion and presented the appellate arguments in the Maryland Court of Special Appeals and the Maryland Court of Appeals. Gourdine v. Crews, No. 134 (Md. 2008).
  • Since 2010, Barnes & Thornburg LLP has served as co-lead counsel for a major medical device manufacturer in the defense of more than 4,000 product liability actions filed in state and federal courts throughout the United States alleging various causes of action including strict product liability.

    In May 2011, the United States Judicial Panel on Multidistrict Litigation ordered the formation of a federal multidistrict litigation in the United States District Court, Northern District of Texas and the firm is playing a lead role in the multidistrict proceeding in the Northern District of Texas as well as in the various state court actions throughout the country.
  • This product liability case involved a prosthetic hip stem that fractured more than 13 years after it was implanted. Two days before the Alabama statute of limitations expired, plaintiffs filed suit against client DePuy Orthopaedics, Inc., and Johnson & Johnson, alleging strict liability, failure to warn and breach of warranty. Though plaintiffs filed the complaint prior to the expiration of the statute of limitations, a summons was not issued until more than six weeks later – well after the statute of limitations had run. DePuy Orthopaedics moved for summary judgment, arguing that Alabama law required a plaintiff to not only timely file a complaint, but also timely serve (or have the intent to timely serve) it as well. On May 13, 2016, the District Court for the Southern District of Alabama granted summary judgment on all counts. On Nov. 28, 2016, in affirming the district court’s ruling, the U.S. Court of Appeals for the Eleventh Circuit applied Alabama law to determine whether the action commenced before the statute of limitations period had run and concluded that under controlling Alabama precedent, withholding service means that the action did not commence when the plaintiffs filed the complaint and the plaintiffs offered no proof demonstrating that they had the requisite intent to timely serve the complaint prior to the running of the statute of limitations.



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