We are skeptical of the claim of negligent training. (Here is excellent article on that topic that is worth retrieving if you bump up against the claim:
We admit we do not even know what a claim of negligent risk management is. But whatever it is, the plaintiff in Green did not adequately plead it. The Green court was also unsure what the claim was exactly, but charitably interpreted it to assert that the defendants had not notified the FDA about problems. The complaint listed several alleged federal violations, including failure to submit certain reports. That sort of thing amounts to a fraud-on-the-FDA claim, which is preempted. In any event, the negligent risk management claim does not exist under
The plaintiff alleged that the defendants falsely advertised the contraceptive product. She said she relied on representations on the defendants' websites. But she did not specify exactly how anything on the website was false. A vague/overbroad allegation that the other side lied does not cut it. Adios, warranty claim.
The plaintiff proposed an amended complaint that did not fix the dismissed claims but added claims for negligent manufacture, strict liability defective manufacturing, and failure to warn. We do not even need to read the complaint to know the manufacturing claims were bogus. They pretty much always are. But the Green court did read the amended complaint, saw no there there, saw that the failure to warn claim was premised on the same facts as the warranty claim, and concluded that amendment would be futile.
The Green court made dismissal of the product liability claims look easy. Maybe it was.
(This not our first post on the Essure litigation. For earlier examples, see here and here.)
This article is presented for informational purposes only and is not intended to constitute legal advice.
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