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N.D. Florida Permits (Some) Discovery of Expert Who Changed from Consulting to Testifying Expert

Discovery regarding expert witnesses can be tricky. In our neck of the woods, the great Commonwealth of Pennsylvania, state courts almost never permit depositions of experts. If you want to ask the expert questions – and...more

N.D. Alabama Issues Mixed Bag of Branded Preemption Rulings

We like bright lines in the law. They streamline arguments for lawyers and, more important, they make it easier for non-lawyers to conduct their affairs with some degree of predictability. Rear-end a car and you’re liable,...more

SDNY Rejects Innovator Liability

May 10 is an important day in the history of the law. On this date, way back in 1893, the Supreme Court ruled that the tomato is a vegetable, not a fruit. The case was called Nix v. Hedden, 149 U.S. 304 (1893). The issue...more

Comparative Fault of Government Regulators Might be a Defense

‘Pointing to the empty chair’ is a well-known defense trial tactic. It allows the defendant to go on offense. Maybe the plaintiff deserves some compensation, so the narrative goes, but the plaintiffs sued the wrong party. ...more

Ninth Circuit Stumbles on CAFA

Plaintiff lawyers must be mighty allergic to federal court. They perform all sorts of maneuvers to avoid CAFA removal of mass actions. For example, they will artificially subdivide their cases into groups of under 100. ...more

WDNY Holds that Tysabri Warnings are Adequate as Matter of Law and that Product Liability Claims are Preempted

However a drug/device product liability is styled, it will almost always be focused on a claim of failure to warn. Why do plaintiffs insist on inserting a cause of action for manufacturing liability when there is not a whiff...more

Does Buckman Preemption Apply to Antitrust and RICO Claims?

We talk a lot on this blog about Buckman preemption. That isn’t just out of pride regarding Bexis’s role in the bone screw litigation that led up to the Buckman decision. The principle in Buckman is important. What happened...more

4/5/2017  /  FDA , Fraud , Preemption

Court Rules that Prisoner is Entitled to Off Label Drug Treatment

Happy birthday to Eric Idle, one of the funniest members of the Monty Python troupe. In addition to writing bizarre, hilarious comedy skits, Idle also wrote songs. When he proposed a song for The Life of Brian, he ran into...more

Warning: Lawyers May Be Hazardous To Your Health

Most of the cases we defend involve claims of inadequate warnings. What makes a warning inadequate? Falsehood is the first thing that comes to mind. But the Pontius Pilate question of “What is truth?” continues to vex. We...more

There’ll Always Be Posner: Reversal of Class Certification in the Blink of an Eye

We’ve seen it before. The Southern District of Illinois will certify class actions with no real cause of action and no real damages. While not as bad as the drive-through-class-certification state courts in southern...more

JPML Refuses MDL for Proton Pump Inhibitor Kidney Injury Cases

A multidistrict litigation (MDL) can be a sound way of managing a mass tort. Efficiencies are available (e.g., deposing company witnesses only once) and the U. of Chicago part of us dreams of economies of scale. Then again,...more

Spoiler Alert: Florida Appellate Court Upholds PMA Preemption and Rejects Parallel Claim

Over the years, comedian Adam Carolla has played the “Germany or Florida” game on his various radio and tv programs and podcasts. The game is based on the observation that many of the most bizarre stories of human ineptitude...more

Fourth Circuit Vigorously Applies Daubert

Last week three of our posts dealt with Daubert issues. That was not intentional. Chalk it up to coincidence. Or was it? We are not especially superstitious, but maybe the passing last week of the great “Professor” Irwin...more

Reclast Plaintiff Experts Hobbled by Daubert

We have long suspected that the reason some judges are hostile to Daubert is because application of the doctrine involves so much work. Rather than merely count whether there are enough other experts out there who seem to be...more

Just What the Doctor Ordered: Package Insert Does not Establish Standard of Medical Care

Like most Americans, we like our doctor. We like doctors in general. We are not looking to start another song battle with our friends over at the Abnormal Use blog, like when we competed to name as many law songs as...more

Medical Causation Experts Pass Daubert Test, But Cannot Opine on Plaintiff’s Lack of Capacity to Sign Release

We typically write about product liability cases, not medical malpractice actions. But the two are not mutually exclusive, and similar issues arise in those cases. Medical causation is an issue we often see in both. Capacity...more

SDNY Applies Preemption in Favor of Branded Drug

On January 3, 2017, we commenced the dreary process of taking down the Christmas decorations. The German nutcrackers slid back into their cartons. Stockings marched from the mantle into plastic storage containers. We picked...more

First Circuit Affirms Dismissal of False Claims Act Case

Happy birthday to Stan Lee, the main man behind Marvel Comics. He wrote the stories for The Amazing Spider Man which, when we were 10 years old, we read with a good deal more enthusiasm than we presently feel when...more

Good Things Come in Small Packages: M.D. Fla. Rejects Plaintiff’s Discovery Gotcha Gamesmanship

This is the time of year for Best and Worst lists. Our own lists of the best and worst drug and device law decisions of 2016 will be coming out soon. Meanwhile, we have no doubt that the worst moments in our own day-to-day...more

Law Review Article Argues that Contraception Mass Torts Injured Consumers

It is bad enough that the mass tort system in our country approximates a system of jackpot justice that, if it ever does justice among the parties, does so accidentally. But its wild inefficiencies and inconsistencies also...more

11th Circuit Upholds Stent Defense Verdict

It is always nice to win a case, whether by motion or trial. But just in terms of pure exhilaration, it is hard to beat hearing the jury foreperson announce that, after a hard-fought trial, you win. But note that term...more

Attorney-Client Privilege Held Not to Apply to Nonreporting Employee/Expert

Many years ago, we represented a client in a quandary. (We know, we know: that’s pretty much always the case.) The product had been sold for many decades, the early history was important in marshalling a defense, and there...more

Amicus Briefs Not So Friendly to California Supreme Court’s Dreadful BMS Personal Jurisdiction Decision

We do a lot of grousing on this blog, but we acknowledge that there is much for which we should be thankful. This legal business permits us to keep our minds lively and our fingernails clean. Even the rotten decisions...more

Smoking Out the Scope of Preemption

Last month, while grappling with an aphrodisiac false-advertising case, we joked that we felt like having a cigarette after reading the court’s opinion. Today we get our cigarette. Or, rather, our e-cigarette. Today’s post...more

M.D. Tenn. Bids Adieu to Out-of-State Class Reps

We are on a personal jurisdiction roll this week. You might even say we’ve got Big Mo behind us. That Mo, of course, refers to Momentum, though it also nicely captures the fact that yesterday’s defense-favorable personal...more

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