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Utah Federal Court Dismisses Birth Defect Failure to Warn Claim

On December 5, 2017, Time Magazine announces its Person of the Year. The publisher called us a week or so ago to say we were PROBABLY going to be named Man (Person) (Blog) of the Year, but we would have to agree to an...more

Eleventh Circuit Affirms Preemption of HRT Complaint

Today, December 1, 2017, is the birthday of Gilbert O’Sullivan, who scored a hit back in 1972 with “Alone Again, Naturally,” the saddest song we can think of this side of Albinoni’s Adagio. That is fitting, given our...more

For N.D. Cal., Primary Jurisdiction is the “Natural” Outcome

We’ve got food on our mind. Last Sunday, the CBS Sunday Morning show ran its food episode, with segments about, inter alia, a little restaurant in the north of England being rated the best in the world, the Martha Stewart...more

C.D. Cal. Excludes Three Plaintiff Experts in Breast Implant Case

It is not as if we are delighted to see efforts to resuscitate breast implant litigation, but we won’t groan when the rulings are as good as they are in Laux v. Mentor Worldwide, LLC, No. 2:16-cv-01026-ODW(AGR) (C.D. Cal....more

A Second Look at Eye-Drop Litigation

Just two days ago, Bexis lowered the boom on the Third Circuit’s recent decision in Cottrell v. Alcon Labs, ___ F.3d ___, 2017 WL 4657402 (3d Cir. Oct. 18, 2017). In a 2-1 decision, the Cottrell court permitted the...more

M.D. PA Declines to Dismiss Monitoring/Declaratory Judgment Action vs.  Blood Temperature Regulation Device

We thought we were on a winning streak on medical monitoring. In August, we blogged about plaintiff lawyers stumbling in their efforts to walk the not-quite-yet-injury line. In September, we blogged about a denial of a...more

Seventh Circuit Curtails RICO Application to Third-Party Payor Off-Label Suits

If you want to insult and annoy someone, consider suing them under the Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. section 1964. That law is charmingly known as RICO, in an allusion to the big bad in the...more

The Bank Rejects Fosamax Folly

Look what just fell into our lap. Our blogging about the favorable California Risperdal preemption decision last week shook loose from that same case a subsequent denial of reconsideration of a summary judgment motion in...more

10/11/2017  /  Evidence , Preemption , SCOTUS , Summary Judgment

The Third Circuit Fosamax Preemption Error Has Got To Go, Part 2

We’ve come to expect top-flight work product from the Product Liability Advisory Council (PLAC), even when it isn’t Bexis pushing the pen or pecking at the keyboard (as he has done so many times on so many important issues)....more

N.Y. Court Holds that Manufacturer Cannot be Responsible for Medical Malpractice

We harbor a suspicion that half the drug/device tort cases we encounter are really medical malpractice cases in search of a deeper pocket (thank you medmal damage cap statutes). We’ve said before that both Levine and Riegel...more

Bah to Legal Lambs

Like many of you, on Friday mornings we turn to the “Legal Lions and Lambs” section of Law360. It is not only voyeurism. We are constantly working on things in media res (the middle of things), building slowly and gradually...more

9/21/2017  /  Courthouses , Judges , Jury Trial

The Third Circuit Fosamax Preemption Error Has Got to Go

Last week we were going through the regulatory record of a drug that is now the subject of mass tort litigation. This effort is central to assembling, per the SCOTUS Wyeth v. Levine case, “clear evidence” that the FDA would...more

There’ll Always Be Posner: An Appreciation

Back in 2010 we started titling some of our posts “There’ll Always Be Posner,” in mimicry of the “There’ll Always Be an England” squibs in The New Yorker. Just as there is something uniquely charming, majestic and,...more

9/6/2017  /  Judges , Richard Posner , Young Lawyers

Criminal Overreach

Come visit us in our office whilst we are poring over a brief and, with minimal provocation, we will put aside the task at hand and start gabbing about our days as a prosecutor. Come sit next to us while we are pouring a...more

Punitive Damages in Mass Torts Cases: Outrageous and in Reckless Disregard of Fairness

It was over 32 years ago that we graduated from the University of Chicago Law School. The three years in Hyde Park were a punishing experience. There was one class in particular when Prof. Richard Epstein used the Socratic...more

Causation Testimony Excluded in Heart-Lung Bypass Machine Death Case – Again

Not even three weeks ago, back on July 28, we discussed the court’s rigorous application of Daubert in excluding expert medical causation opinions in Smith v. Terumo Cardiovascular Sys. Corp., a federal case in the district...more

In Praise of Brevity

We’re on vacation. The dog days of Summer are upon us. Time for our annual (okay – monthly) (okay- weekly) substance-less post. Our vacation began just a couple of days ago, yet we already rue its passing. Good times go by in...more

The Rule of Law is the Best Medicine, Part 2

Last week, we summarized PhRMA’s comments on the FDA’s proposed amendments to regulations regarding “intended uses.” PhRMA showed how the FDA’s insistence that it could read manufacturer’s minds about intended uses made no...more

PhRMA Comment on the FDA’s Proposed Off-label Rule: The Rule of Law is the Best Medicine

The FDA cannot get out of its own way on the issue of off-label communications. Its power to punish off-label promotion comes from an odd regulatory two-step, whereby off-label promotions are said to prove an indicated use...more

SDNY Brushes Away Presumption Against Preemption and Stays Class Action Via Primary Jurisdiction

We depend on young associates to perform most of the legal research that supports the arguments we make on behalf of our clients. By and large, those associates do an excellent job. On those rare occasions when we find...more

New Mexico Wrongful Conduct Rule Shuts Down Opioid Case Against Pharmacist

New Mexico is called the Land of Enchantment, but when it comes to law it is the Land of You Can’t Make this Up. You might think it weird that New Mexico’s state constitution (Article VII, section 1) specifies that idiots...more

Law Review Article on Off-label is On Target

More than once we’ve said that we read law review articles so you don’t have to. We separate the wheat from the chaff. The wheat is scarce. That is because law review articles usually drown the little bits of objective...more

Ninth Circuit En Banc Panel Holds that Central Hudson Survives Sorrell

Last week we bashed a Ninth Circuit Daubert decision. We feel a little bit bad about that, not because the decision wasn’t bashworthy – no, Wendell really is a rotten precedent – but because we hate contributing to the...more

Ninth Circuit Reverses Daubert Exclusion

Let’s start with a shameless plug: the author of this post, along with Sean Wajert (Shook Hardy & Bacon), will present a Strafford webinar on June 21 entitled, “Daubert/Frye Motions in Product Liability Litigation: Bringing...more

Georgia, Tennessee, and Texas Statutes of Repose Limit IVC Filter Cases in Different Ways

In the annals of history, June 6 gets prime billing. That’s understandable, because the successful Normandy landings on D-Day (June 6, 1944), probably saved Western Civilization. (Or maybe that heroic endeavor simply...more

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