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On June 23, 2014, the United States Supreme Court denied certiorari in Medtronic, Inc. v. Stengel, leaving in place the Ninth Circuit's en banc decision permitting a failure-to-warn claim against a pre-market approval (PMA)...more
Democratic legislators in both houses of Congress introduced legislation that seeks to reverse the U.S. Supreme Court’s recent decision in PLIVA, Inc. v. Mensing, 131 S.Ct. 2567 (2011), which bars state law tort suits against...more
Originally published in Washington Legal Foundation on August 3, 2012.
Class action lawyers looking for a shakedown have gone on a food binge. They have focused on the food industry and the ever-obliging federal court...more
The Supreme Court’s opinion in Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 349-50 (2001), recognizes that any attempt by a plaintiff to enforce the FDCA is preempted by federal law, because Congress entrusted...more
The Ninth Circuit Court of Appeals has further curtailed the universe of state law claims pertaining to Class III medical devices that are neither expressly preempted by Riegel v. Medtronic, Inc., 552 U.S. 312, 315 (2008) nor...more
The Ninth Circuit Court of Appeals recently shrank universe of state law claims pertaining to Class III medical devices that remain untouched by Riegel express preemption or Buckman implied preemption. In Stengel v....more
Our initial post about Bartlett v. Mutual Pharmaceutical Co., ___ F.3d ___, 2012 WL 1522004 (1st Cir. May 2, 2012), was more or less a crie de coeur over what we saw as an essentially absurd result: that while a simple...more
Sometimes good ideas don’t prevail the first time – or even the first few times – they make their appearance. With that in mind we bring to your attention Windle v. Synthes USA Products, Inc., 2012 U.S. Dist. Lexis 52397...more
The extent to which federal law preempts state law claims is an issue that has been in the forefront of drug and medical device litigation throughout the past few years. In the context of medical device litigation, the U.S....more
On Feb. 22, 2012, the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed the U.S. District Court for the Northern District of Texas' granting of a defendant drug manufacturer's motion for summary judgment on all...more
In a decision published on February 29, 2012, the U.S. Supreme Court held that all personal injury and wrongful death claims based on state law causes of action, including defective design and failure to warn, involving...more
The Lofton decision deepens the split among the U.S. circuit courts on whether or not the U.S. Supreme Court's "fraud-on-the-FDA" preemption decision in Buckman applies broadly and forcefully to all claims...more
Yesterday, the New Jersey Supreme Court decided the case of Kendall v. Hoffman-LaRoche, Inc., A-73-2010 (066802), in which it held that plaintiff’s case was not barred by New Jersey’s two-year statute of...more
Does Buckman v. Plaintiff's Legal Commmittee, 531 U.S. 341 (2001), apply any time that a plaintiff raises a fraud on the FDA allegation in litigation, or is it limited to causes of action denominated "fraud on...more
Some of us on this blog have rooting interests that lie far from where The Schuylkill and The Delaware meet. They’re up past the New Jersey Turnpike, all the way to New York City. For us, ever since the...more
Those of you who check our post-Mensing generic preemption scorecard regularly are aware that a preemption massacre has been going on in Louisiana federal court. By our count, just since October there have been eight...more
You all know we love preemption. So, when two favorable medical device preemption decisions are entered on the same day, well that’s a two-fer we can’t wait to blog about. In both cases, plaintiffs tried to plead and argue...more
We don't like it, but sometimes we have to present bad news. Such is the case with Murthy v. Abbott Laboratories, 2011 U.S. Dist. Lexis 129102 (S.D. Tex. Nov. 8, 2011). There’s a lot of things wrong with Murthy, but one of...more
Today's decision in Guarino v. Wyeth, No. 8:10-cv-2885-T-30TGW, slip op. (M.D. Fla. Nov. 11, 2011), contains the following interesting holdings: (1) Mensing, being an implied preemption case, contains no exception to...more
Back in April, we put up a post complaining about Weeks v. Wyeth, 2011 WL 1216501 (M.D. Ala. March 31, 2011), one of the few courts anywhere not to dismiss a Conte-type non-manufacturer liability claim for failure to state a...more
The New Yorker's current issue has a fine article on Pauline Kael. The weekend Wall Street Journal had a similar piece. Why the wall-to-Wall Street coverage of a film critic who wrote reviews from 1953 to 1991 and died in...more
A lot of people think that Ronald Reagan won the presidency in 1980 in his first debate when he replied jokingly “there you go again” to then-President Carter’s attempt to portray him as some sort of rightwing nut intent upon...more
We commented on the Obama Administration’s anti-preemption search and destroy mission at the time, back in 2009. To recap, a presidential memorandum directed all federal administrative agencies to seek out, identify, and...more
Beginning in 1996, the United States Supreme Court took a series of cases related to Federal preemption of state law claims for products approved by the United States Food and Drug Administration (''FDA'')....more
We don't see many successful applications of preemption with respect to 510k, Class II medical devices since Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), so when we do, it's a big deal. Here's one. Today, in Degelmann v....more
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