Latest Publications


You Can Use BMS To Oppose Class Certification, Too

We have written a lot about personal jurisdiction and class actions, and we have particularly questioned how, after BMS, anyone could proceed with a nationwide class action applying state law in a forum where there is no...more

The Best Wisconsin Law Decision We’ve Ever Seen, Affirmed

The district judge in the In re Zimmer Nexgen Knee Implant Products Liability Litigation MDL issued a summary judgment order in October 2016 that we called “the best Wisconsin law decision we have ever seen.” What was the...more

“A” Is For Preemption

The Seventh Circuit taught us recently that the letter “A” is a powerful thing. Of course, we already knew that a well-placed A can convert the ordinary (“typical”) into the extraordinary (“atypical”), the melodic (“tonal”)...more

California Class Action Update

Class actions hold our interest, even though we do not see them all that often anymore in the drug and medical device space. Maybe we are the rubbernecking motorists who can’t resist slowing down to gaze at someone else’s...more

As If Discovery Were Not Difficult Enough, Now This

When Congress enacted HIPAA and its Privacy Rule in the mid-1990s, it was a big deal. Healthcare providers surely protected patient privacy in the pre-HIPAA days, but the federal statute gave them a standard set of rules with...more

Dental Device Class Action Comes Back To Bite Plaintiffs

You don’t see class actions going to trial very often, but that is what happened in Patricia A. Murray Dental Corp. v. Dentsply International, Inc., and the defendant device manufacturer came away with a defense verdict that...more

Breaking News: TH v. Novartis – California Supreme Court Recognizes New Tort Duties as Traditional Limits Slide into the Sea

We posted our 2017 “Worst 10 decisions” list a day too soon, because the California Supreme Court issued its anticipated decision in TH v. Novartis, No. S233898, slip op. (Cal. Dec. 22, 2017) today, and if it is not the worst...more

Ninth Circuit Undoes Incretin Implied Preemption Ruling – For Now

We reported two weeks ago on an order favoring implied preemption in an innovator prescription drug case coming out of the Eliquis MDL in New York. One week after that order, the Ninth Circuit filed an unpublished opinion...more

Still No “Newly Acquired Information,” Eliquis Claims Still Preempted

The defendants in the Eliquis MDL have turned somewhat of a preemption hat trick. The latest order is In re Eliquis (Apixaban) Prods. Liab. Litig., No 17-md-2754 (S.D.N.Y. Nov. 29, 2017), where the district court dismissed...more

More of What You Will See on Personal Jurisdiction Following BMS

We wrote a few months ago about what you will see from the plaintiffs’ side as they try to evade the Supreme Court’s opinion in BMS v. Superior Court. That opinion has combined with Bauman to reset personal jurisdiction and...more

Here Is Why The False Claims Act Is An “Awkward Vehicle” In Pharma Cases

We have always thought that the False Claims Act resides in some sort of alternate universe when it comes to pharmaceutical products. The central concept behind the FCA is easy: The FCA penalizes anyone who presents, or...more

Unreliable Expert Opinion Does In California Talc Verdict

We are sure you all heard about the $417 million verdict returned recently against a talcum powder manufacturer in Los Angeles, and we are equally sure you heard about the trial court’s order setting the verdict aside a...more

Three Strikes And . . . You Get Another Chance?

“Legal conclusions, though, are not entitled to the assumption of truth.” If that were the only point we could take away from Wright v. Howmedica Osteonics Corp., No. 5:17-cv-459, 2017 U.S. Dist. LEXIS 168785 (M.D. Fla. Oct....more

Innovator Liability, Perpetual Liability Argued in California Supreme Court

The California Supreme Court heard oral argument in T.H. v. Novartis on Monday. That is the case where the California Court of Appeal held that a prescription drug manufacturer could be held liable for injuries allegedly...more

No Causation, No “Parallel Claim”

The district court’s order dismissing claims in Ebrahimi v. Mentor Worldwide LLC, No. CV 16-7316, 2017 WL 4128976 (C.D. Cal. Sept. 15, 2017), is a good antidote to the Ninth Circuit’s wrongly decided opinion in Stengel v....more

Awful Missouri Venue and Warnings Opinion Affirmed—But Maybe Some Hope

Hope springs eternal. At least that is what the optimists say, and while we would like to see the bright side of the Missouri Supreme Court’s split opinion on venue in Barron v. Abbott Laboratories, Inc., No. SC 96151, 2017...more

Talcum Plaintiffs Can’t Show Personal Jurisdiction In Show Me State

“I am from Missouri. You have got to show me.” That quote attributed to Congressman Willard Duncan Vandiver in 1899 is reputedly the source of Missouri’s unofficial nickname, the “Show Me” state. Or maybe it isn’t. Whatever...more

Dental Device Class Action Bites The Dust

This is our second post in three weeks on class actions, owing to the filing of two really interesting class action opinions within a couple of weeks of each other. We posted two weeks ago on the Eleventh Circuit’s rejection...more

What You Will See On Personal Jurisdiction Following BMS

The Supreme Court’s opinion on personal jurisdiction in BMS v. Superior Court has already made a substantial impact, despite being on the books for a mere three weeks. That’s probably because it’s the Supreme Court and also...more

California Is At It Again On Personal Jurisdiction

Maybe we should not be surprised when courts within California reach to find personal jurisdiction over out-of-state corporations even when non-Californians sue. That is what BMS v. Superior Court was all about. Right? ...more

Eleventh Circuit Gets It Wrong on Preemption

We have a point of view. Our readers understand that we represent folks on the right side of the v., and our posts tend to read cases and legal trends with a pro-defense bent, although you can rest assured that we put a lot...more

No “Real Intention To Prosecute” Equals Fraudulent Joinder

The Eastern District of Pennsylvania recently entered a fraudulent joinder order that is worth highlighting because it applies a fraudulent joinder standard that we think should apply more broadly. It has always puzzled us...more

Considering Arbitration

We first mused over arbitration and drug/medical device claims exactly six years ago, when the United States Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). In that widely studied...more

Is the Government Protecting Your Private Information?

We were not affected by the recent ransomware attack that disabled computers worldwide, including in multiple public hospitals in the UK. At least not yet. For those who have never had the pleasure or who otherwise do not...more

Another Accutane Verdict Vacated in New Jersey

No one can be all that happy with how the Accutane mass tort proceeding has played out in New Jersey. We have no involvement in that proceeding, but we have monitored it from afar, and it has been extraordinarily contentious....more

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