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What You Will See On Personal Jurisdiction Following BMS

The Supreme Court’s opinion on personal jurisdiction in BMS v. Superior Court has already made a substantial impact, despite being on the books for a mere three weeks. That’s probably because it’s the Supreme Court and also...more

California Is At It Again On Personal Jurisdiction

Maybe we should not be surprised when courts within California reach to find personal jurisdiction over out-of-state corporations even when non-Californians sue. That is what BMS v. Superior Court was all about. Right? ...more

Eleventh Circuit Gets It Wrong on Preemption

We have a point of view. Our readers understand that we represent folks on the right side of the v., and our posts tend to read cases and legal trends with a pro-defense bent, although you can rest assured that we put a lot...more

No “Real Intention To Prosecute” Equals Fraudulent Joinder

The Eastern District of Pennsylvania recently entered a fraudulent joinder order that is worth highlighting because it applies a fraudulent joinder standard that we think should apply more broadly. It has always puzzled us...more

Considering Arbitration

We first mused over arbitration and drug/medical device claims exactly six years ago, when the United States Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). In that widely studied...more

Is the Government Protecting Your Private Information?

We were not affected by the recent ransomware attack that disabled computers worldwide, including in multiple public hospitals in the UK. At least not yet. For those who have never had the pleasure or who otherwise do not...more

Another Accutane Verdict Vacated in New Jersey

No one can be all that happy with how the Accutane mass tort proceeding has played out in New Jersey. We have no involvement in that proceeding, but we have monitored it from afar, and it has been extraordinarily contentious....more

The Cheese Runneth Over...Into Illinois

Last September we expressed our curiosity over Wisconsin cheese curd and our distaste for an order from the Western District of Wisconsin rejecting implied preemption in an amiodarone case. As we explained then, the district...more

Eleventh Circuit Affirms A Very Unhappy Unverdict Against Hip Manufacturer

A funny thing happened on the way to a defense verdict last year—after the jury decided that the defendant’s product was not defective, the MDL judge told the jurors that perhaps they did not “fully understand” and instructed...more

All Things “Considered”: Plaintiffs’ Experts Ordered To Produce Patient Records

“The facts and data considered by the witness . . . .” That is what expert witnesses must disclose to the other side after forming their opinions, although the rule was not always this way. Before 2010, you had to disclose...more

Solicitor General Urges Supreme Court to Reverse California’s Ill-Conceived Version of “Specific Jurisdiction”

The Defendant/Petitioner has filed its merits brief in the U.S. Supreme Court in BMS v. Superior Court. This is the case where the California Supreme Court expanded specific personal jurisdiction beyond recognition by basing...more

An Intelligent Treatment of “Mass Actions” in Pennsylvania

It is has been a rough few weeks for forum-shopping litigation tourists. We wrote the other day on the Missouri Supreme Court’s landmark opinion in State ex rel. Norfolk Southern Railway Co. v. Dolan, which held that...more

Nebraska Daubert Order Finds Expert a Mile Wide at the Mouth, But Only Six Inches Deep

A case from Douglas County, Nebraska, caught our eye this week for a couple of reasons. It’s a great Daubert order in an Accutane case in Nebraska state court. In addition to that, this blogger’s mother grew up on a farm in...more

Hip Case Breaks the Right Way in New York

A recent case in the Southern District of New York debunks two myths that we see all the time. Myth number one: A medical device is defective if it fails. Myth number two: A plaintiff can prove causation on a...more

New Jersey Supreme Court Turns Back The Clock on Statute of Limitations

We thought we understood statutes of limitations and choice-of-law rules in New Jersey. Until yesterday. That was when we read the New Jersey Supreme Court’s opinion in McCarrell v. Hoffmann-La Roche, Inc., No. 076524, 2017...more

What You Need To Know About the FDA’s Guidance on Postmarket Cybersecurity

The FDA released its final Guidance on Postmarket Management of Cybersecurity in Medical Devices during the week between Christmas and New Year. You can link to a full copy here, and we gave you our detailed take on the draft...more

Alter Ego and Agency – A Different Spin on Jurisdiction

This is the second time in two years that we have written the Drug and Device Law Christmas blogpost. Last year, your dedicated blogger posted on Christmas Day a nice little piece on innovator liability that we are sure you...more

A Gem on Alternative Design from a Pelvic Mesh MDL

We don’t write a lot on the various pelvic mesh MDLs in West Virginia because we are so heavily involved in two of them. But the MDL court entered an order last week on design defect and alternative design that we consider to...more

This Is How A False Claims Act Case Works—And Fails

It took us a long time to understand how off-label promotion of prescription drugs had anything to do with the False Claims Act, and we’re still not so sure that the two are a fit. The FCA penalizes anyone who presents, or...more

Don’t Underestimate the Statute of Limitations

As we hurtle into the holiday season, we are reminded that good things often come in small packages. That certainly was the case in a one-and-a-half-page opinion that the Ninth Circuit filed last week in a prescription...more

“Slack Fill” Class Action Is Empty Space

We never heard the term “slack fill” before we started writing for this blog, but it seems to be getting a lot of attention lately. We enjoyed a podcast from NPR’s Planet Money the other day discussing slack fill in black...more

TCPA Health Care Exceptions Properly Applied In California

The Telephone Consumer Protection Act (“TCPA”) potentially touches just about every kind of business, including the business of selling prescription drugs. That is what the Northern District of California grappled with...more

Another Champion for Proportionality in Discovery

For the second time within a month, an MDL court has rejected wide-ranging and potentially abusive discovery on the basis that the requests were out of proportion to the needs of the case. This is a welcome development. We...more

Pennsylvania’s Long Arm Overreaches The Constitution And Bauman

The U.S. Supreme Court’s game-changing Bauman opinion in 2014 has us writing a lot on personal jurisdiction. A while back we marveled over how quickly lower courts have responded to Bauman. We had anticipated that it would...more

Wisconsin Preemption Ruling Makes Our Cheese Curdle

A federal judge in Wisconsin issued an order a few weeks ago that covers two topics on which we often write—negligence per se and implied preemption. The two concepts are not unrelated. We most commonly see negligence per se...more

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