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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

Vast – Or at Least Half-Vast – Conspiracy Claim Dismissed

Imagine a conspiracy so vast that it includes not only your usual plaintiff-side fantasy of the FDA conspiring with a drug company, but also high FDA officials, President Obama, Robert Mercer (noted Trump supporter and...more

When Precedents Collide

We read Michelle Yeary’s recent post about In re Fosamax Products Liability Litigation, ___ F.3d ___, 2017 WL 1075047 (3d Cir. March 22, 2017), with particular interest. We were especially intrigued with the research...more

4/12/2017  /  En Banc Review , Preemption

Parallel Claims in PMA Medical Device Complaint Warrant Federal Question Removal

We were wondering when the courts would catch on to this Catch 22. In order to survive preemption, plaintiffs suing the manufacturers of pre-market approved (“PMA”) medical devices have to allege “parallel claims” in which...more

Past Time for Rule 11 in Louisiana

The Louisiana Product Liability Act (“LPLA”) was enacted way back in 1988 – almost 30 years ago – to rein in the Louisiana courts’ product liability insanity (inanity?) epitomized by Halphen v. Johns-Manville Sales Corp., 484...more

Update – Which Decisions Have Excluded Dr. Parisian, And About What?

Back in 2013, we published a comprehensive post on the checkered Daubert history of the notorious and prolific (in equal amounts) plaintiff-side “FDA expert” (although she routinely attempts to opine way beyond FDA matters) –...more

Disputed Federal Regulatory Duty Allows Federal Question Removal

As we’ve mentioned before, we watch state-law litigation over genetically-modified organisms (“GMOs”) because they tend to produce interesting results on federalism issues such as preemption, since anti-GMO zealots often try...more

3/23/2017  /  APHIS , Crops , FDA , Genetically Engineered Seed , GMO

What If We Win? Off-Label Promotion & Product Liability

Since the nomination of Dr. Scott Gottlieb to head the FDA, we’ve seen quite a few references to his opposition to the current FDA prohibition against off-label promotion – regardless of the truth of the promotion itself. We...more

More on Missouri – What To Expect and Not To Expect After Dolan

This is a follow-up to our post last week on the Missouri Supreme Court’s momentous personal jurisdiction decision in State ex rel. Norfolk Southern Railway Co. v. Dolan, ___ S.W.3d ___, 2017 WL 770977 (Mo. Feb. 28, 2017)...more

Litigation Tourism Ended In Missouri

If we’d learned about State ex rel. Norfolk Southern Railway Co. v. Dolan, No. SC95514, slip op. (Mo. Feb. 28, 2017) (“NSRC”), earlier, this would have been a breaking news post – but make no mistake about it, this is big...more

On Alternative Design, Take Two - Negligence

Back in 2013, inspired by a win of our own that we were actually allowed to blog about, we put up a post entitled “On Alternative Design.” Taking the alternative design requirement for strict liability as a given, we...more

And Now – From the Same Court That Gave Us Engle….

That’s Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), the most bizarre use of res judicata that we’ve ever seen – giving preclusive effect to a class action verdict despite also finding that the class was not...more

Non-Physician Learned Intermediaries

One of us was asked a question the other day that we couldn’t answer immediately. “Does the learned intermediary rule apply to a physician’s assistant?” We didn’t remember any cases actually deciding that issue. So we did...more

What Is “Product Liability”?

We’re serious – we’re not planning to give a flip answer like “an extortion racket.” No, it’s more like law school, where a first-year contracts professor began with the question “What is Chicken?” (Hint – that’s discussed...more

FDA-Approved Labeling Does Not Equal Medical Standard Of Care

We’ve been defending the ability of physicians to engage in off-label use ever since the Bone Screw litigation of the 1990s. Buckman Co. v. Plaintiffs Legal Committee, where the United States Supreme Court affirmed that...more

More Cy Pres Abuse in California Class Action Litigation

We can’t stand “cy pres” distributions of class action settlement funds to non-litigants. We’ve blogged about this benighted doctrine many times. We fought against cy pres at in the ALI, and we’ve been fighting against it...more

Gorsuch Looks Pretty Good On Preemption

When we heard about Judge Neil Gorsuch being nominated for the United States Supreme Court, our first move was to enter his name in Westlaw along with the term “preemption.” That’s the constitutional doctrine most important...more

FDA Off-Label Promotion Memo Should Affect §510k Preemption & Evidence

Remember how Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), dismissed the §510k “substantially equivalence” medical device clearance as non-preemptive because it was supposedly “focused on equivalence, not safety”? Id. at...more

Not So Shameless Plug – New 3D Printing Materials

This post is from the Reed Smith side of the blog only. For well over a year, now Reed Smith has been engaged in an “initiative” concerning the innovative technology, “3D printing,” also known as “additive...more

Pitfalls Of Judges, Lawyers, And Experts Citing Wikipedia

Our weekly search for new drug/medical device cases for 1/13/17 turned up something unusual – not of particular substantive significance, but unusual. Two of the opinions included citations to Wikipedia. Wikipedia? ...more

Breaking News – Supreme Court Takes BMS Personal Jurisdiction Case

The United States Supreme Court today granted certiorari in Bristol-Myers Squibb Co. v. Superior Court. Here is a link to the order. The California Supreme Court decision in this case was our worst case for all of 2016. ...more

Unusual Removal Situation Yields Favorable Result

We’re pretty familiar with most diversity-based removal techniques, so when we see something unusual, we sit up and take notice (as we did with removal before service) – then we blog about it. Today’s case is Bahalim v....more

Obama FDA’s Parting Shot On Off-Label Promotion And The First Amendment

We haven’t digested it yet, so this isn’t a substantive post, but we wanted to make our readers aware that today the FDA made an announcement, which states in pertinent part...more

Medicare Secondary Payer – A Lot Less Boring Now

We’ve previously written several posts (not recently) on Medicare secondary payer (“MSP”) issues – which we characterized as “boring.” The recent MSP decision, Humana Insurance Co. v. Paris Blank LLP, 2016 WL 2745297, 187 F....more

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