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Federal Pre-emption and Aircraft Certification: You Have to Read This Opinion!!

by LeClairRyan on

Originally posted August 11, 2017 - Today, we turn our attention to the latest chapter in a long saga concerning the scope of federal preemption over product liability claims made against manufacturers of certificated...more

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

by Reed Smith on

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

Eleventh Circuit Affirms Preemption of HRT Complaint

by Reed Smith on

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

United States Judicial Panel on Multidistrict Litigation: November Meeting Overview

The next hearing session of the United States Judicial Panel on Multidistrict Litigation is scheduled for November 30, 2017 in St. Louis, Missouri. Eight matters are set for oral argument to consider motions to transfer each...more

Unavoidably Unsafe PMA Medical Devices

by Reed Smith on

When it comes to design defect claims and FDA pre-market approved (“PMA”) medical devices, “preemption” is our reflexive reaction. That’s entirely reasonable, given the many decisions that preempt state-law design-related...more

PMA Preemption & Fraud by Omission/Concealment

by Reed Smith on

As our PMA preemption scorecard makes clear, warning claims are preempted under Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), because the preemptive language, “different from or in addition to,” precludes plaintiffs from...more

Third Circuit Eyes Up Consumers’ Standing, Splits With Seventh Circuit

by Foley & Lardner LLP on

Last month, the Third Circuit issued a 2-1 decision in Cottrell v. Alcon Labs., reversing a district court’s dismissal of a class action lawsuit on standing grounds. The putative class in Cottrell is comprised of consumers of...more

The Opioid Epidemic – What Kind of a Problem Is It?

by Reed Smith on

We know that our blogposts are carried by legal aggregating services, such as Lexology and JDSupra. Some of you may even be reading this post via one of these services. In addition to writing for them, we actually read...more

Ninth Circuit Improperly Lowers Admissibility Bar for Expert Causation Testimony

by Foley Hoag LLP on

In Wendell v. GlaxoSmithKline LLC, the U.S. Court of Appeals for the Ninth Circuit reversed a trial court order that excluded expert testimony concerning the cause of a profoundly rare and deadly disease. The decision...more

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

by Reed Smith on

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

More of What You Will See on Personal Jurisdiction Following BMS

by Reed Smith on

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

BMS and Nationwide Class Actions

by Reed Smith on

We have not been shy in predicting that Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017) (“BMS”), and Daimler AG v. Bauman, 134 S. Ct. 746 (2014) (“Bauman”), should restrain certain abusive class action...more

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

by Reed Smith on

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

State Court Relies Upon Supreme Court’s Bristol-Meyers Squibb Decision to Vacate Jury Verdict Against J&J

by Cozen O'Connor on

The Supreme Court limited a striking vulnerability for product manufacturers in Bristol-Myers Squibb Co. v. Superior Court of California this summer when it ruled that out-of-state plaintiffs could not simply claim injuries...more

Cross-Examining the Expert Witness in a PL Case: What Are the Relevant Facts & Data? (Part 2)

by Wilson Elser on

In the first part of this series, we examined how effective deposition questioning about an expert’s education, training and experience can ultimately call into serious question the expert’s qualifications to serve as an...more

Non-News: Warnings Claims For A Generic Drug Preempted (Still)

by Reed Smith on

We can be inundated with news. Old news. New news. Fake news. Breaking news. News that makes you want to break something. News that makes you want to go back to bed. In trying to be discerning consumers of the news, it...more

West Virginia Plaintiffs Haunted by Past Excesses

by Reed Smith on

We remember how, shortly after the atrocious decision in Johnson & Johnson v. Karl, 647 S.E.2d 899 (W. Va. 2007), rejecting altogether the learned intermediary rule, litigation tourists visiting West Virginia argued that Karl...more

No Voluntary Dismissal for Plaintiffs, and a Summary Judgment Win for Defendants, in Central District of California Risperdal Case

by Reed Smith on

In the mass torts world in which we find ourselves, glimmers of jurisprudential light can seem few and far between. Two things we love are good warnings causation decisions and sneaky plaintiffs getting caught at their own...more

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

by Reed Smith on

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

A Second Look at Eye-Drop Litigation

by Reed Smith on

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

Standing Out

by Reed Smith on

Last month we brought you word of an excellent result (preemption) in a ridiculous case - a class action claiming that the drops in eye-drops are too big. That decision was in accord with an earlier decision likewise...more

Unreliable Expert Opinion Does In California Talc Verdict

by Reed Smith on

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

Guest Post – Accutane Amici Say: Relax Somewhere Else – Expert Testimony in New Jersey Should Be Held to a Higher Standard

by Reed Smith on

The Accutane litigation in New Jersey has been covered closely by this Blog for its duration. The Blog’s most recent Accutane post evaluated the Appellate Division’s decision to reverse the trial court’s order excluding...more

Second Circuit Affirms Exclusion of Plaintiffs’ Experts – and Summary Judgment for Defendant – in Mirena MDL

by Reed Smith on

As we write this, our fair city remains in a blissful haze following our Eagles’ 33-10 rout of the 49’ers to go 7-1 in the NFC East, so it might be appropriate to call today’s opinion a “touchdown.” On the other hand, the...more

Medtronic v. Lohr Has Two Shadows

by Reed Smith on

For over fifty years, the BBC has been chronicling the exploits of that ultimate learned intermediary, Dr. Who. Over the decades, successive Doctors have crossed swords (or sonic screwdrivers) with a wide variety of enemies,...more

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