Once a mass tort becomes widely publicized, sometimes based on a combination of a bad study, a verdict or two for plaintiffs, internet sites, and late night television ads, lots of plaintiffs come out of the woodwork, including plaintiffs with weak, late, or marginal claims. Those plaintiffs and the clever lawyers who assist them believe that if they just get past the obstacles the law throws in their way – pesky things like the statute of limitations, product identification, causation, and the like – then they will be given the keys to the kingdom, or at least to the defendant’s vault. As a result, in the life cycle of a popular mass tort, courts often see and resolve almost every kind of claim and issue, including issues that have not been litigated in the jurisdiction for a while.

The pain pump litigation is a good example. It has generated tons of opinions, perhaps because it is not an MDL. The latest is Pavelko v. Breg, Inc., No. 09-cf-01461 (D. Colo. Feb. 28, 2011).

Plaintiff Pavelko had shoulder surgery in 2003 and had a Breg pain pump to alleviate post-surgical pain. Thirty-three months later, in March 2006, she went to a doctor complaining of shoulder pain, and he diagnosed her as having chondrolysis. She brought strict liability and negligence claims in 2009, alleging that defendant Breg was liable because it should have known and warned that pain pumps caused chondrolysis.

After discovery, Breg moved for summary judgment based primarily on the undisputed fact that no one reported any potential connection between shoulder pain pumps and chondrolysis until 2006, three years after plaintiff’s surgery. In other words, the state-of-the-art defense, although the court did not use that term. Plaintiff responded with the alleged duty to test. Plaintiff argued that Breg had a duty to disclose risks that would have been disclosed by reasonable testing and submitted a bunch of medical articles supposedly suggesting further tests.

The court smacked down this argument because plaintiff did not submit expert testimony supporting her argument that these articles put a reasonably prudent manufacturer on notice about the need for further testing, and the court’s own review of the articles found nothing to put the manufacturer on notice. Slip op. at 11-12. The court also bounced for lack of supporting expert evidence plaintiff’s claim that Breg’s general testing of the device was inadequate.

Plaintiff tried to get around these problems by arguing that Breg marketed its device for a purpose not cleared by the FDA, based on that popular notion among plaintiffs that allegations of off-label marketing cure all ills. The court disagreed, finding both that plaintiff failed to submit expert testimony supporting this claim (an unsworn report by the ubiquitous Suzanne Parisian about other manufacturers didn’t do it) and the evidence showed that use of the pain pump in the joint space was considered to be an approved use. Id. at 14-15.

All that stuff is good for our side. But the court put a blemish on this little gem by considering and denying summary judgment based on Colorado’s two-year statute of limitations. There was a factual dispute about whether plaintiff was told in 2006 that the pain pump could have caused her chondrolysis, and therefore summary judgment based on actual knowledge was denied. Fair enough. But Breg argued that plaintiff had a duty to ask her doctor about the potential cause of her chondrolysis in 2006. Her doctor testified that, if asked in 2006, he would have told her that the pain pump may have been the cause. The court, however, found that the plaintiff did not have knowledge of facts that would have put her on notice that her chondrolysis was caused by the wrongful conduct of another and therefore denied summary judgment on this ground.

Given that the court granted summary judgment based on the state-of-the-art defense, the court’s statute of limitations discussion was 100% unnecessary to its decision and therefore dicta. Despite the dicta, Pavelko is a good win for the defense based on the established legal principles that one bad apple don’t spoil the whole bunch and two out of three ain’t bad.