We just spotted Placencia v. I-Flow Corp., 2011 WL 1361562 (D. Ariz. April 11, 2011), a pain pump case, in which the court threw out the plaintiff's latest attempt to keep non-manufacturer competitors in the case. Specifically they claimed that one pump company (DJO) conspired with another pain pump company (I-Flow) "acted as promoters of . . . pain pumps despite knowing that the FDA had not approved the pumps for orthopedic use" and thus "aided and abetted" the "sale and distribution of the pumps for orthopedic use in contravention of federal law."
That's because a civil conspiracy isn't an independent tort. The "predicate tort" plaintiffs asserted was merely the "promoti[on of] pumps for orthopedic use was contrary to federal law." Placencia, 2011 WL 1361562, at *2.
Violating the FDCA isn't a tort. It's not even something plaintiffs have standing to complain about:
Section 337(a) of the FDCA bars private enforcement of the statute . . . Even assuming arguendo that DJO Defendants' promotional acts violated the FDCA, the violation is not a tort for which a private plaintiff has a justiciable remedy. Without an underlying statutory action or tort having been pled in Plaintiff's civil conspiracy claim, the claim must be dismissed without prejudice as to DJO Defendants.
Placencia, 2011 WL 1361562, at *4. In addition to a few pain pump decisions, the court relied upon: Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001); PhotoMedex, Inc. v. Irwin, 601 F.3d 919 (9th Cir.2010), and In re Orthopedic Bone Screw Products Liability Litigation, 1997 WL 186325(E.D. Pa. 1997), aff’d, 193 F.3d 781 (3d Cir. 1999).
Bone Screw Litigation - the gift that keeps on giving.