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New Favorable Risperdal Decisions

Risperdal, an antipsychotic drug prescribed to treat serious mental conditions – schizophrenia, manic depression, and autism – allegedly causes some male users to develop abnormal breast tissue growth. Particularly when...more

Comment K and Non-Implanted Medical Devices

About two years ago, in our post “How Does a Bad Idea Get Implanted,” we discussed what at the time seemed a California peculiar argument that the “unavoidably unsafe” product doctrine epitomized by Restatement (Second) of...more

How Not To Create an “Exception” to the Learned Intermediary Rule

We’ve heard more about the constitutional “emoluments clause,” Art 1 §9, clause 8, this year than during the entire rest of our legal careers. But while it’s illegal for anybody working for the U.S. government to accept...more

Post-BMS Personal Jurisdiction Cheat Sheet

In the wake of the defense wins during the last Supreme Court term in Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017) (“BMS”), and BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549 (2017), we’re retiring the personal...more

Artificial Intelligence and Learned Intermediaries

In the July 7, 2017, “Artificial Intelligence” issue of Science, we were intrigued by a short piece in the “Insights” section on “Artificial Intelligence in Research” that discussed the future use of autonomous robots in...more

A Sometimes Overlooked Fact About Express Warranty

The warranty is “express.” Before you say, “Well, duh,” this sometimes actually does matter. Here’s how. Most complaints in product liability actions involving prescription medical products that include express warranty...more

Boxed Warnings and Adequacy as a Matter of Law

One of the (many) things that made last year’s decision in Barron v. Abbott Laboratories, Inc., ___ S.W.3d ___, 2016 WL 6596091 (Mo. App. Nov. 8, 2016), so hideous that it weighed in at #3 of our worst decisions of the year...more

A Double Whammy for California Design Defect Claims

Finally, some good news out of California – at least when personal jurisdiction isn’t the issue. Design and warning defects were the questions presented in Trejo v. Johnson & Johnson, ___ Cal. Rptr.3d ___, 2017 WL 2825803...more

Both Sides Equal Under the First Amendment

There’s a problem with attorney advertising in the prescription medical product space – but it’s not the one you normally hear us defense-side litigators kvetching about. Quite apart from its litigation-generating effects,...more

Failure To Contraindicate Claims and Preemption

We were recently asked the question, “are failure to contraindicate claims preempted?” Our immediate response was, “How could they not be”? However, it’s not helpful to answer a question with a question, and as with all...more

Breaking News - Bristol-Myers Squibb Slams The Door On Litigation Tourism

The Supreme Court decided “the big one” today – and not to keep anyone in suspense [the big one is a major earthquake in California mass tort litigation], the result is that the California Supreme Court finding of personal...more

Fourth Circuit Punts West Virginia Innovator Liability Issue

We have two posts on innovator liability that we update on a consistent basis: our innovator liability scorecard, and our “Innovator Liability at 100” state-by-state collection of materials that we originally compiled when...more

Latest Updates To Ediscovery for Defendants Cheat Sheet

This is our quasi-annual update to our cheat sheet about ediscovery for defendants. Essentially that means using discovery to obtain access to what plaintiffs have said about themselves, and their supposed injuries, on...more

A One-Two-Three Inning

With the Phillies stinking the joint out – off to their worst start since World War II – and both of Boranian’s local teams in last place, too (not as deeply buried as the Phillies), use of baseball imagery might seem a bit...more

Breaking News - Personal Jurisdiction – The Sound of One Shoe Dropping

We pointed out earlier that Bristol-Myers Squibb Co. v. Superior Court, No. 16-466 (“BMS”), was not the only personal jurisdiction matter on the Supreme Court’s docket this term. Argued the same day as BMS was BNSF Railway...more

Supreme Court Expands Forum-Shopping Crackdown

While we are waiting for the Supreme Court to rule in Bristol-Myers Squibb Co. v. Superior Court, No. 16-466 (“BMS”), an interesting thing happened. Last week in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, ___ S.Ct....more

Speaking of the First Amendment...

Now that Dr. Scott Gottlieb is safely installed as FDA Commissioner, we at DDLaw can end our moratorium on blogposts about First Amendment issues. There was no way we wanted to give his opponents any ammunition by saying nice...more

No Ifs, Ands Or Butts – Preemption Gutts, Rebutts, and Shutts Down Utts

Late last year we happily blogged about Utts v. Bristol-Myers Squibb Co., ___ F. Supp.3d ___, 2016 WL 7429449 (S.D.N.Y. Dec. 23, 2016), chiefly because it held that design defect claims against a branded prescription drug...more

Discovery – Requestor Pays, Part of the Way, Anyway

One of the issues that the federal Civil Rules Committee’s discovery subcommittee considered, but that eventually fell by the wayside, on the way to the 2015 discovery rules amendments, were proposals to convert to a...more

“Pre-Approval” Design Defects - No Such Thing

As our post-Levine preemption cheat sheet demonstrates, Mensing/Bartlett preemption is breathing down the necks of all prescription drug design defect claims. Recent cases finding preemption of design defect claims due to...more

Breaking News: Cerveny – “Clear Evidence” Preemption Wins on What Matters Most

On May 2, 2017, the Tenth Circuit affirmed in part, reversed in part, and remanded the post-Levine branded drug preemption decision in Cerveny v. Aventis, Inc., No. 16-4050 (10th Cir. May 2, 2017). ...more

Breaking News: Cerveny – “Clear Evidence” Preemption Wins on What Matters Most

On May 2, 2017, the Tenth Circuit affirmed in part, reversed in part, and remanded the post-Levine branded drug preemption decision in Cerveny v. Aventis, Inc., No. 16-4050 (10th Cir. May 2, 2017). ...more

The Other Supreme Court 4/25 Personal Jurisdiction Argument

Last week, the United States Supreme Court also heard argument in the “other” litigation tourist personal jurisdiction case pending before it – BNSF Railway Co. v. Tyrell, No. 16-405 (U.S. argued April 25, 2017) (“BNSF”)...more

Supreme Court 4/25 Personal Jurisdiction Argument

The other day, the United States Supreme Court heard argument in Bristol-Myers Squibb Co. v. Superior Court, No. 16-466 (U.S. argued April 24, 2017) (“BMS”) (link to transcript). We’ve blogged many times about the issues in...more

Smoke Screens & Side Shows

We confess, we can’t think of any good reason for admitting evidence concerning product risks that the plaintiff in a particular case never actually encountered – yet plaintiffs try it with a straight face all the time. It’s...more

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