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Bijan Esfandiari

Wisner Baum 11111 Santa Monica Blvd, Ste 1750 Los Angeles, CA 90025 Practice Area(s): Products Liability, Class Action / Mass Tort Litigation call (310) 207-3233 fax (310) 820-7444 visit website

Biographical Information Admission Dates & Jurisdictions Education Honors & Awards Professional Associations Press Representative Cases Speaking Engagements Publications Service Activities

Biographical Information

Bijan Esfandiari is a pharmaceutical product liability litigation attorney and partner at Baum, Hedlund, Aristei & Goldman in Los Angeles. He has successfully represented clients in state and federal courts across the nation at both the trial and appellate level in wrongful death and catastrophic personal injury cases.

Bijan has had the privilege of participating in cases that have shaped and developed the law for the benefit of injured victims and consumers of pharmaceutical products. In one such case, the Court agreed with his arguments and, in an issue of first impression, held that drug manufacturers owe an affirmative duty to warn regarding risks associated with children’s off-label use. Bijan’s published cases have also exposed reprehensible corporate conduct. For example, a federal court in Pennsylvania noted that “internal documents suggest that Defendant acted with a wanton and willful disregard for the safety of its consumers,” and thus allowed Bijan’s clients to proceed with their punitive damages claims.

He has also been at the forefront of the preemption battle and has successfully argued against preemption (drug/device manufacturer immunity) in numerous cases. Most recently, in 2014, Bijan successfully briefed and argued the first and only medical device preemption case to be heard by Maryland Court of Special Appeals, wherein in an issue of first impression, the three judge panel unanimously agreed with Bijan’s arguments that plaintiff’s claims were not preempted and held that plaintiff could proceed with his claims against the medical device manufacturer.  McCormick v. Medtronic, Inc., 219 Md. App.485, 101 A.3d 467, 474 (2014) (“We shall hold that federal law does not expressly or impliedly preempt the plaintiffs’ claims concerning misrepresentations or express warranties that the manufacturer may have made in voluntary communications with the public or with members of the medical profession.”).

Similarly, Bijan successfully briefed and argued the first drug preemption case to ever be heard by the United States Seventh Circuit Court of Appeal in Chicago, Illinois.  In the landmark decision, the three judge panel of the Seventh Circuit unanimously agreed with Bijan’s arguments and held that plaintiffs’ claims against the drug manufacturer were not preempted by federal law. Mason v. SmithKline Beecham Corp., 596 F.3d. 387 (7th Cir. 2010).  The significance of these landmark rulings is they ensure that drug and medical device companies who engage in deceptive or impermissible conduct are not entitled to immunity (preemption) and must be held accountable for monetary damages in a court of law for any injuries that they or their products cause to consumers.

In addition to the previously mentioned appellate decisions, Bijan has likewise successfully opposed preemption in numerous other state and federal trial courts, including Tucker v. SmithKline Beecham Corp., 596 F.Supp.2d 1225 (S.D.Ind. 2008); Knipe v. SmithKline Beecham Corp., 583 F.Supp.2d 553 (E.D.Pa 2008); Forst v. SmithKline Beecham Corp., 639 F.Supp.2d 948 (E.D.Wis. 2009); Dorsett v. Sandoz, Inc., 699 F.Supp.2d 1142 (C.D.Cal. 2010); and Cabana v. Stryker Biotech LLC, 2012 WL 3876245 (Cal.Super.Ct., Aug. 20, 2012). Bijan also co-authored amicus briefs in support of the respondents in the Supreme Court’s landmark cases Wyeth v. Levine, 129 S.Ct. 1187 (2009) and Pliva v. Mensing, 131 S.Ct. 2567 (2011).

Bijan has written numerous articles, including “Complete Tort Immunity For Drug Manufacturers Is Bad For The Public Health,” published in Mealey’s™ Litigation Report, “Preemption’s Requiem in the Wake of Wyeth v. Levine,” Mealey’s™ Emerging Drugs & Devices and “Levine To Mensing — A Journey From The Sublime To The Ridiculous,” Mealey’s™ Emerging Drugs & Devices.  Most recently, he co-wrote “Challenging Medical Ghostwriting in US Courts,” published in PLoS Medicine.

Admission Dates & Jurisdictions

  • California, 2002
  • U.S. District Court, Central District of California, 2002
  • U.S. Court of Appeals, Ninth Circuit, 2002
  • U.S. District Court, Southern District of California, 2005
  • U.S. District Court, Eastern District of California, 2005
  • U.S. Court of Appeals, Tenth Circuit, 2008
  • U.S. District Court, Western District of Michigan, 2008
  • U.S. District Court, Eastern District of Wisconsin, 2008
  • U.S. Court of Appeals, Third Circuit, 2008
  • U.S. Court of Appeals, Seventh Circuit, 2009
  • U.S. Supreme Court, 2011
  • U.S. District Court, Northern District of California, 2012
  • U.S. Court of Appeals, First Circuit, 2013

Education

  • University of California, Los Angeles (B.A., cum laude, 1999)
  • University of California School of Law, Los Angeles, California (J.D., 2002)

Honors & Awards

Professional Associations

  • State Bar of California
  • American Association for Justice: Leader’s Forum; Medtronic InFUSE® Litigation Group; Products Liability Section; Qui Tam Litigation Group; STEP-Toxic, Environmental and Pharmaceutical Torts Section
  • Consumer Attorneys Association of Los Angeles
  • Member, UCLA Journal of International Law & Foreign Affairs
  • Contributing Author to The Docket, a UCLA School of Law Publication

Press

TV

  • KABC News Los Angeles
  • KCAL News Los Angeles
  • KCBS  News Los Angeles
  • KNBC News Los Angeles
  • KTTV Fox 11 News Los Angeles

Radio

  • KPCC 89.3 Southern California Public Radio

News

  • Andrews Litigation Reporters
  • Bloomberg News
  • BNA (Bureau of National Affairs, Inc.)
  • California Lawyer Magazine
  • Chicago Daily Law Bulletin
  • FDA News: Devices & Diagnostics Letter
  • Law 360
  • Law.com
  • Lawyers USA
  • Mass Device Blog
  • Mealey’s Emerging Drugs & Devices
  • Mealey’s Litigation Report: Antidepressant Report
  • MedPage Today
  • Milwaukee Journal Sentinel
  • National Law Journal
  • Nature
  • Pennsylvania Law Weekly
  • Pharmagossip
  • Pharmalot
  • Philadelphia Inquirer
  • Pittsburgh Post Gazette
  • San Francisco Chronicle
  • Sciencedaily.com
  • The Chronicle of Higher Education
  • The Legal Intelligencer
  • The Legal Intelligencer
  • The Star Ledger
  • Toronto Star
  • TRIAL magazine
  • Westlaw Journals

Representative Cases

  • Hricik v. Stryker Biotech, LLC, 89 F. Supp. 3d 694 (E.D. Pa. 2015) (granting plaintiff’s motion to remand the case back to state court)
  • Boutte v. Stryker Biotech, LLC, 67 F. Supp. 3d 732, 734 (M.D. La. 2014) (denying defendant’s motion to dismiss and permitting plaintiff to proceed with his products liability claims against medical device manufacturer)
  • McCormick v. Medtronic, Inc., 219 Md. App. 485, 101 A.3d 467 (2014) (unanimously reversing the trial court’s preemption/dismissal ruling and holding that injured patient’s claims arising out of medical device manufacturer’s off-label promotion of its medical device were not preempted by federal law and thus allowing plaintiff to proceed with his meritorious claims)
  • Cabana v. Stryker Biotech, LLC et al., Case No. BC465313, 2012 WL 3729227 (Cal.Super. Ct., August 20, 2012) (holding that injured patient’s state law claims arising out of medical device manufacturer’s off-label promotion of its bone morphogenetic protein [Infuse] were not expressly nor impliedly preempted by federal law)
  • Dorsett v. Sandoz, Inc., 699 F.Supp.2d 1142 (C.D.Cal. 2010) (denying defendants’ preemption motion and holding that both name-brand and generic drug manufacturers have an affirmative duty to issue warnings)
  • Tucker v. SmithKline Beecham Corp., 701 F.Supp.2d 1040 (S.D.Ind.2010) (denying defendant’s learned intermediary defense and further allowing plaintiffs’ experts to testify regarding the causal association between antidepressants and increased suicidal behavior)
  • Mason v. SmithKline Beecham Corp., 596 F.3d 387 (7th Cir. 2010) (unanimously reversing the trial court’s preemption ruling  and allowing plaintiffs’ claims to proceed to a trial on the merits)
  • Forst v. Smithkline Beecham Corp., 639 F.Supp.2d 948 (E.D.Wis.,2009) (holding that plaintiffs’ claims are not preempted by federal law)
  • Forst v. SmithKline Beecham Corp., 602 F.Supp.2d 960 (E.D.Wis. 2009) (holding that Wisconsin has not adopted the learned intermediary doctrine and allowing all of plaintiffs’ claims, including, negligence, fraud and punitive damages to proceed to the jury)
  • Cunningham v. SmithKline Beecham, 255 F.R.D. 474 (N.D.Ind. 2009) (ordering defendant to produce documents and awarding sanctions)
  • Knipe v. SmithKline Beecham, 583 F.Supp.2d 602 (E.D.Pa. 2008) (holding that a drug manufacturer owes a duty to warn regarding risks associated with off-label uses and allowing plaintiffs’ claims for compensatory and  punitive damages to proceed to the jury)
  • Knipe v.SmithKline Beecham, 583 F.Supp.2d 553 (E.D.Pa 2008) (holding that plaintiffs’ claims are not preempted by federal law)
  • Tucker v. SmithKline Beecham Corp., 596 F.Supp.2d 1225 (S.D.Ind. 2008) (granting plaintiff’s motion for reconsideration and holding that plaintiff’s claims are not preempted by federal law)
  • Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802

Speaking Engagements

  • Program: Medtronic InFUSE Litigation Group
    Topic: Status of Cases That Have Survived Preemption Motions and Discovery Strategies and Different Venue Options
    Organization: American Association for Justice
    Event:  2014 AAJ Annual Convention
    Location: Baltimore, Maryland
    Date: July 26 – 30, 2014
  • Topic: “Status of the Infuse Litigation”
    Organization: Mass Torts Made Perfect
    Event:  Medtronic Infuse Litigation Update
    Location: Las Vegas, Nevada
    Date: October 10, 2013
  • Topic: Panel: Corruption
    Organization: Selling Sickness
    Event: Selling Sickness, People Before Profits, Session VI
    Location: Washington, D.C.
    Date: February 20 – 22, 2013
  • Topic: “Living with the Mensing Decision”
    Organization: Mass Torts Made Perfect
    Event:  Actos and Pelvic Mesh Litigation Update
    Location: Philadelphia, Pennsylvania
    Date: February 8, 2012
  • Topic: “Legal Implications of Pharmaceutical Ghostwriting”
    Organization: Faculty of Law’s Conference
    Event: The Ethics of Ghost Authorship in Biomedical Research: Concerns and Remedies Workshop
    Location: University of Toronto
    Date: May 4, 2011
  • Topic: “Oral Advocacy Competition Participant”
    Organization: American Bar Association
    Event: ABA Forum on Communications Law – Media Advocacy Workshop
    Location: Key Largo, Florida
    Date: February 8, 2007
  • Topic: “Strategies for Litigating Copyright Cases When Infringement is Uncontested”
    Organization: San Fernando Valley Bar Association
    Event: Intellectual Property, Entertainment Law & Internet Law Section
    Location: Woodland Hills, California
    Date: February 17, 2006

Publications

Service Activities

  • Member, Representative Assembly of the Palms Neighborhood Council
  • Public Counsel Volunteer Attorney, 2007
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