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Dealing with the ROT in Mass TORts

Anyone interested in what’s wrong with mass torts in today’s litigation landscape should read the recent article in the New York Times article, “How Profiteers Lure Women Into Often-Unneeded Surgery,” which ran in the paper...more

When MDL Judges Come To Visit

We wrote a post not too long ago recommending that MDL defendants seriously consider limiting so called “Lexecon (read the prior post if you don’t know what that means) waivers” to single plaintiff trials and to exclude...more

Post-BMS: Jurisdiction over Subsidiary ? Jurisdiction over Parent

The personal injury decisions Daimler AG v. Bauman, 571 U.S. 117 (2014), and Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), are gifts that keep on giving. The latest development is Wilson v. Nouvag GmbH,...more

IVC - Inconsistent Verdict Created

We don’t normally comment on verdicts, whether they favor our side or the plaintiffs, because the bare fact of a verdict doesn’t give us much to analyze, and analysis is what this blog is about. But we make an exception for...more

Why Cross-Jurisdictional Class Action Tolling Is Such a Bad Idea

We’ve always been against the concept of class action tolling: that merely by filing a class action – the class action does not have to have any merit – a class action lawyer magically stops the running of the statute of...more

Private Eyes on the Rise in Texas

Dating back to our Bone Screw days we have mostly pleasant memories of using surveillance to catch plaintiffs making phony claims. For a variety of reasons, a large percentage of the Bone Screw plaintiffs were workers’...more

Federal Right To Try Legislation – Is It Any Better – 2018 Edition

A little more than six months ago, we reviewed then-pending federal right-to-try legislation. Since then it’s become a shiny object, capable of distracting those governing the country from more important matters. One...more

Legal Black Holes Proliferate After Stephen Hawking’s Death – Massachusetts Allows Somewhat Limited Innovator Liability

Stephen Hawking may have been the smartest guy in the world, even though he believed that “People who boast about their I.Q. are losers.” Hawking is best known for his work on black holes. As used in physics, a black hole...more

Another Domino Teetering – Stream of Commerce Personal Jurisdiction after BMS

Several decisions since the beginning of the year, and two appellate rulings in the last couple of weeks, highlight another aspect of Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), that should be...more

Does State Law Really Allow Tort Claims For Failure To Report To Governmental Agencies?

Claims predicating prescription medical product liability claims on purported failure to report adverse events to the FDA – á la Stengel v. Medtronic Inc., 704 F.3d 1224 (9th Cir., 2013) (en banc), Hughes v. Boston Scientific...more

New York High Court Reaffirms Defense Right to Social Media Discovery

Until very recently, the only state high court decisions (from VA and DE) on our ediscovery for defendants cheat sheet involved sanctions against plaintiffs for destroying social media evidence....more

More Adventures In Personal Jurisdiction - Examining The BMS “Federal Court” Caveat

With plaintiffs desperate to find some way to continue pursuing aggravated, aggregated product liability litigation in their favorite venues after Daimler AG v. Bauman, 134 S. Ct. 746 (2014) (“Bauman”), and Bristol-Myers...more

It Should Be Obvious – An Azzarello Jury Charge Is Reversible Error In Pennsylvania After Tincher

If you’re not interested in Pennsylvania product liability law at the moment, come back tomorrow. This particular post is not limited to (or even primarily about) prescription medical products....more

Only You Can Prevent….

We’ve seen the latest affirmance of largely identical verdicts in a consolidated MDL trial in Campbell v. Boston Scientific Corp., ___ F.3d ___, 2018 WL 732371 (4th Cir. Feb. 6, 2018). We’re not discussing Campbell’s merits...more

The Lawyer Full Employment Action of 2018

On January 30, 2018, Judge Goodwin entered four case management orders in the Ethicon, Boston Scientific, Bard, and American Medical Systems mesh MDLS. These CMOs establish discovery and briefing deadlines for 13200, 6174,...more

Breaking News – MDL vs. MDL, FDA §510k Clearance Admissible in IVC Filter MDL

As we demonstrated in a post back in 2013, FDA compliance evidence generally - and the fact of a medical device’s clearance as “substantially equivalent” in safety and effectiveness to a predicate device under §510k of the...more

More Legislation To Watch

Like a lot of large firms, Reed Smith has a number of blogs. We don’t mention them much because, DDL has product liability pretty well covered, and the others mostly don’t overlap a lot with what we do. But occasionally…....more

More on BMS & Nationwide Class Actions

Speed. Some things move faster than others. When we viewed last August’s solar eclipse, in Tennessee, the Moon’s shadow was moving along the Earth at a rate of about 1,450 miles per hour. Depending mostly on latitude, your...more

Pennsylvania Risperdal Decision Doesn’t Go As Far As Plaintiffs Suggest

While the recent Pennsylvania Superior Court Risperdal decision is not a defense victory, it is certainly not as favorable for plaintiffs as they are making it out to be. While several issues were presented for appeal in...more

Applying the “Arising Out of or Relating to” Personal Jurisdiction Test

Our careers have seen several major pro-defense trends in product liability litigation: Mainstreaming summary judgment: This happened when we were still young lawyers. A trilogy of United States Supreme Court cases...more

No Old Kentucky Home for Parallel FDCA-Based Tort Claims

Several years ago, in a post entitled “Negligence Per Se Trivia,” we included the following: "In Kentucky, negligence per se has been codified, and claims based on federal (but not state) statutes or regulations (like the...more

In a Word - Incredible

Summary judgment isn’t normally available for credibility issues. During the “summary judgment trilogy” of 1986, the Supreme Court stated, “[c]redibility determinations, the weighing of the evidence, and the drawing of...more

Where To Find Our Research 3.0

Happy New Year! - It’s been 3 ½ years since we last updated our index to our online research resources. That’s almost ? of the total life of the blog, which started in way back in 2006. We’ve been blogging now for well...more

The Highs - Celebrating the Ten Best Prescription Drug/Medical Device Decisions of 2017

Ending the year on a high note is one thing that the blog tries to do – with the top ten drug/device product liability decisions of the year. Occasionally, a court will do something that ruins the party, with an eleventh-hour...more

Inauspicious Debut for Depakote Plaintiffs’ First Amendment Argument

We’ve been aware of the other side attempting to construct a First Amendment counter-argument to our preemption defense for some time. It first cropped up in a 2015 360 article by a P-side thought leader (no, not necessarily...more

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