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Lack of Specificity May Kill Parallel State Law Product Claims, But Not Fraud Claim

by Cozen O'Connor on

A Michigan district court judge determined last week that product liability claims against an FDA approved medical device manufacturer were preempted by federal law, but allowed the plaintiff’s claim of fraud against the...more

What’s That Smell? An Examination of Legal Developments Related to Formaldehyde Products

Is that formaldehyde you smell in your newly floored sunroom? Hopefully, it is not. Formaldehyde is a colorless, flammable, strong-smelling chemical used in construction and household products, such as cabinets, furniture,...more

Aviation Happenings - Spring 2017

The Spring 2017 edition of the Aviation Group’s newsletter examines some of the most recent and relevant cases and developments in aviation law, including: - Air Carrier Not Responsible for Rancid Cheese Under Montreal...more

Toxic Tort & Product Liability Quarterly Vol. 9, No. 4, December 2016

by Beveridge & Diamond PC on

DC High Court Adopts Daubert Approach to Expert Testimony - In a direct victory for mobile phone manufacturers and service providers, and with implications for any other case involving expert testimony in the District of...more

How Might a Trump Administration Affect Our Sandbox?

by Reed Smith on

No, we’re not here to muse about how our lack of contact with advanced extra-terrestrial civilizations might be due to an unfortunate proclivity for “intelligent” life to invent technology that destroys their home planets...more

Smoking Out the Scope of Preemption

by Reed Smith on

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

Seventh Circuit Holds that FDAAA Does Not Affect Mensing/Bartlett Preemption

by Reed Smith on

When we first set foot on the University of Chicago Law School campus back in 1982, Chicago sports were a mess. But quickly – certainly more quickly than our ability to grasp the Rule in Shelley’s Case, Last Clear Chance, or...more

Proposed New FDA Labeling Rules Would Result in Increased Generic Drug Product Liability Claims

After several years of delay, FDA announced this summer that it expects to publish new rules in April 2017 that will permit generic drug companies to make unilateral changes to their warning labels, even if the brand does...more

Causation Issues in Failure-To-Report Cases – Post-Stengel Precedent

by Reed Smith on

As we blogged at the time, we believe that the Ninth Circuit made a historic error in Stengel v. Medtronic Inc., 704 F.3d 1224 (9th Cir., 2013) (en banc), when it equated routine product liability inadequate warning claims...more

Another Make Work Project In New Jersey – Duty To Update Claims

by Reed Smith on

The United States Supreme Court has said it – the test for implied preemption under 21 U.S.C. §337(a) (the FDCA’s no-private-enforcement provision) is whether the purported state-law cause of action would exist even in the...more

A Banner Week For Buckman Preemption

by Reed Smith on

There used to be a TV show called “That Was the Week That Was.” It was a satirical look at the news of the prior week, but perhaps it’s most lasting accomplishment was to launch David Frost’s career. Without an ounce of...more

Another Reason Why Medical Device Class Actions Don’t Work

by Reed Smith on

The Ninth Circuit filed a preemption opinion the other day that should help prevent the “foodification” of medical device litigation. That made-up word refers to the wasteful food-related class action litigation that has...more

Guest Post – Through the Dictionary, and What One Court Found There: Adventures in the BAAA

by Reed Smith on

It’s August and several your valiant bloggers are on vacation, so the skeleton crew manning the fort is even more grateful for reinforcements than usual. Here is another guest post, this time from Reed Smith‘s Court...more

Courts Continue to Reaffirm Preemptive Effect of Statute Protecting Aircraft Lessors

by Holland & Knight LLP on

A decision out of the U.S. District Court for the District of Hawaii joins a growing list of holdings reaffirming the proposition that an owner, lessor or secured party not in actual possession or control of an aircraft is...more

Even with a Road Map, Only One Dubious Claim Navigates Preemption

by Reed Smith on

Here’s another guest post, this time from Reed Smith‘s Jaimee Farrer.  This post concerns PMA preemption, and a second opinion largely getting rid of a case that we blogged about before.  As always, Jaimee deserves all the...more

Two Favorable Tysabri Rulings Add Clarity to “Clear Evidence” Preemption Standard – and More

by Reed Smith on

Anyone who has checked our post-Levine innovator drug & vaccine cheat sheet lately has no doubt noticed our two most recent entries, Gentile v. Biogen Idec, Inc., 2016 WL 4128159 (Mass. Super. July 25, 2016), and Christison...more

California Court Clears The Way For Express Preemption

by Reed Smith on

Not everyone sees eye to eye on federal preemption, including judges. Take for example the conflicting opinions from the California Court of Appeal applying the express preemption provision of the Medicare Prescription Drug,...more

A One-Two Punch Case With An Off-Label Twist

by Reed Smith on

When we were young(er), we had a pretty good memory. It is not bad now, as far as we recall, particularly when it comes to pulling up bits of esoteric nonsense. For more important stuff, we find qualifiers like “vague” and...more

Another Prescription Drug Warnings Preemption Decision

by Reed Smith on

Not that our readers are dying for a glimpse behind the curtain into the making of the sausage (and mixed metaphors) of the blog, but we do try to first figure out what decisions may be blogworthy before we start writing up...more

The Difference Between Manufacturing and Design Defects

by Reed Smith on

Some plaintiffs seem to think that if they allege any problems about anything in the manufacturing process of a prescription medical product, then it falls under the rubric of “manufacturing defect.” They’re wrong, of course....more

Dismissing Drug Design Defect Based on Preemption

by Reed Smith on

In a rare harkening to our past and discussion of specific judges, we recall that our first gig after law school was clerking for Judge Jon P. McCalla of the United States District Court for the Western District of Tennessee....more

San Francisco vs. The Monster (aka Federal Regulation)

by Reed Smith on

There is a lawyer we worked with at another firm who had a standard move, kind of the way that Jerry Seinfeld had a standard “move” – and, come to think of it, with a similar intention. (“The Move” shows up in “Fusilli...more

Trimming Some Fat From Statin Litigation With Daubert and Preemption

by Reed Smith on

In the mythical days of product liability yore, a big drug litigation was spurred by a notable event—like a study describing a new risk appearing in a major journal, a significant labeling change because of new or greater...more

Federal Preemption Narrowed For Aviation Suppliers In Sikkelee v. Precision Airmotive Corp.

by Cozen O'Connor on

On April 19, 2016, the Third Circuit Court of Appeals issued its opinion on the issue of federal preemption in Sikkelee v. Precision Airmotive Corp. The sixty-one page opinion effectively narrowed the scope of federal...more

Preemption: Oregon Has Not Gone Bananas

by Reed Smith on

Can you get sued over a picture of a banana? It seems the answer might depend on where you live and probably not in Oregon. That is one takeaway from a good preemption case that came out of the District of Oregon last week,...more

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