J. Benjamin Broadhead

Ben Broadhead is a product liability associate residing in Faegre Drinker’s Indianapolis office. Ben focuses his practice on medical device litigation and mass torts.

View the full bio for J. Benjamin Broadhead at the Faegre Drinker website.

Articles by J. Benjamin Broadhead:


Expert’s Failure to Identify Product Defect in Pressure Cooker or Inadequacy in Warnings Leads to Summary Judgment

It is axiomatic that a plaintiff must offer evidentiary support for each element of her claim in order to survive summary judgment. And a ubiquitous feature of product liability actions is the use of expert witnesses by both sides. These principles are, of course, related – the plaintiff usually must offer expert testimony in order to make a prima facie case, and the defense then attacks that prima facie case through expert testimony. But sometimes a plaintiff loses sight of the connection and, despite retaining an expert, fails to elicit the opinions she needs to make her case. As a recent decision from the Western District of Wisconsin illustrates, it pays for a defendant to carefully evaluate whether a plaintiff has checked all of the necessary boxes.

In Moore v. National Presto Industries, Inc., 2022 WL 1555875 (W.D. Wis. May 17, 2022), Plaintiff alleged that she was injured when she opened her pressure cooker while it was still pressurized, ejecting its contents onto her arm, causing burns. Plaintiff sued the cooker’s manufacturer, asserting strict liability claims for design defect and failure to warn as well as a claim for negligence. Defendant moved for summary judgment on each of these claims.

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This Month in Snap Removal: The District of Nevada Muddies Its Snap Removal Waters and Throws Proponents a Life Preserver

Faegre Drinker’s snap removal team continuously monitors snap removal updates across the country (for a basic explanation of snap removal and previous updates, see Faegre Drinker’s prior posts here; for a breakdown on how each federal jurisdiction treats snap removal, see Faegre Drinker’s interactive snap removal map here).

The United States District Court for the District of Nevada is no stranger to consideration of the practice of snap removal—indeed, the District of Nevada has issued a number of decisions in 2020 and 2021, all holding that snap removal was improper unless and until at least one defendant has been served. But a recent opinion out of the District rejects the reasoning in those earlier decisions and holds that snap removal is proper even if no defendant has been served.

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Two District Courts Focus on “Gamesmanship” in a Double Dose of Rejection for Snap Removal

Faegre Drinker’s snap removal team closely monitors snap removal updates across the United States (for a basic explanation of snap removal and previous updates, see Faegre Drinker’s prior posts here; for a breakdown on which jurisdictions allow snap removal, see Faegre Drinker’s interactive snap removal map here).

In two recent decisions out of the District of Maryland and the Western District of Washington, both courts emphasized “gamesmanship” as a reason for rejecting the practice of snap removal in each jurisdiction. Interestingly, though, one district focused on gamesmanship by plaintiffs while the other district focused on gamesmanship by defendants.

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In D.D.C., Remand Arguments Are “No Match” For Plain Language Supporting Snap Removal

Pre-service removal—known colloquially as “snap removal”—continues to be adopted in more jurisdictions. For a basic explanation of snap removal, see Faegre Drinker’s prior posts here.

In Doe v. Daversa Partners, 2021 WL 736734, at *3 (D.D.C. Feb. 25, 2021), the U.S. District Court for the District of Columbia joins the Second, Third, and Fifth Circuit Courts of Appeal affirming the practice of snap removal. Noting that the D.C. Circuit had not yet opined on the issue, the Daversa court provided a thorough analysis and rationale for refusing remand under the circumstances.

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Failure to Fully Disclose Expert Opinions Results in Summary Judgment

Federal Rule of Civil Procedure 26(a)(2) requires retained expert witnesses to provide an expert report which gives “a complete statement of all opinions the witness will express and the basis and reasons for them.”  Fed. R. Civ. P. 26(a)(2)(B)(i).  If a party fails to disclose information required under Rule 26(a)(2), “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”  Fed. R. Civ. P. 37(c)(1).  As a plaintiff in the Western District of Washington recently learned, failure to adhere to Rule 26 can be fatal to a case.

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Plaintiff’s Firm Pays the Price for Dismissing Bellwether Cases

On August 25, 2020, Judge Richard L. Young, S.D. Indiana, granted Cook Medical Inc.’s motion for sanctions against the plaintiff’s law firm in Burrage v. Cook Medical Inc. et al.

This case was one of many “no-injury” claims in the Cook IVC Filter MDL, meaning that the plaintiff did not claim any symptomatic injuries related to his IVC filter. It was selected as a bellwether case in August 2019 following a selection process that required substantial time and effort from the parties and the court. In June 2020, plaintiff’s counsel moved to voluntarily dismiss his claims with prejudice on the grounds that they have a “negative value” (meaning that the costs of litigating the case exceed the anticipated recovery), and Burrage never anticipated that the case would go to trial.

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