Throw Enough Mud at the Wall and Some of it Will Stick

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We could have gone with “if at first you don’t succeed, try, try again.” Or, Dory’s famous “Just keep swimming” from Disney’s Finding Nemo. But, when talking about plaintiffs, slinging mud just feels more appropriate (to us). And, I guess somewhere in here is a backhanded compliment about being persistent, but really we would describe our children as “persistent” when they ask for the 20th time to go see the latest Disney movie – and it wouldn’t be a compliment. In fact, under our breath you’d probably catch a few words we wouldn’t want our children to hear. Since our message here isn’t for impressionable children but rather hardened plaintiffs’ counsel – we’ll shout it right out: YOU CAN’T BRING A *&$%#%& CLAIM FOR FRAUD ON THE FDA. Phew, that felt good.

In a much more diplomatic and reserved fashion, that is what the court said in Pontious v. Medtronic, 2011 U.S. Dist. Lexis 140717 (D. Kan. Dec. 7, 2011). Plaintiff attempted to bring her fraud-on-the-FDA claim as a consumer fraud action alleging that “[d]efendants violated the KCPA . . . when they willfully failed and refused to timely report information . . . as required by 21 C.F.R. § 805.50(a).” Id. at *5-6. The court quickly concluded that...

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