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Innovator Liability – A Word to the Wise

by Reed Smith on

A lot of us attended the annual ACI Drug & Medical Device Litigation Conference in New York City last week. One of the messages sent loud and clear from the initial client round table panel is that our clients don’t like...more

Third Circuit Splits with the Seventh Over Standing To Sue For Alleged Inefficient Design of Eye Drop Dispenser

In a surprising decision and split with the Seventh Circuit, the Third Circuit recently held that plaintiffs have standing to sue for unfair trade practices under the theory that a manufacturer is obligated to optimize the...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

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

Expiring Soon: Temporary BPA Warning Regs Under Prop 65

With the holidays and end of the year quickly approaching, here is what food and beverage manufacturers and sellers need to know before the temporary Proposition 65 safe harbor warning for Bisphenol A (BPA) exposures expires...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

Food, Dietary Supplement & Cosmetics Update | Vol. IV, Issue 7

by Jones Day on

USDA Inspector General Recommends Reform of AMS Organic Program for Imports - The USDA Inspector General ("IG") reviewed the Agricultural Marketing Service's ("AMS") process used in determining whether exporting...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

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

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

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

Full Disclosure: New Labeling for Cleaning Products

by Morrison & Foerster LLP on

On October 15, 2017, California Governor Jerry Brown signed into law Senate Bill 258, known as the Cleaning Product Right to Know Act of 2017 (the “Act”). The Act requires manufacturers of most cleaning products sold in...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

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

Preemption as a Mass Tort Talisman?

by Reed Smith on

A talisman is something thought to protect whoever has it from evil or harm. In the old days a talisman might be something like garlic to ward off vampires or the Seal of Solomon to keep away various evil spirits. Nowadays,...more

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

by Reed Smith on

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

Staying The Course In A Mississippi Drug Case

by Reed Smith on

Defense hacks. Homers. Biased. These are just a few of the labels we have applied to the authors of this Blog. While we recognize our leanings and strive to offer something more than just cheering a decision for the defense...more

Proposition 65 Legislative Changes Likely “Lack Merit”

by Morrison & Foerster LLP on

On October 5, 2017, California Governor Jerry Brown signed Assembly Bill 1583 into law. It was promoted as a means of reducing frivolous Proposition 65 (Prop 65) lawsuits, but, as discussed below, it is doubtful that it will...more

MDL Direct Filing & Personal Jurisdiction

by Reed Smith on

Bexis gave a talk the other day at the Washington Legal Foundation on personal jurisdiction after last term’s United States Supreme Court decisions in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017)...more

Consumer Product Update - California's Green Chemistry Initiative Looks for New Products to Regulate

by Morrison & Foerster LLP on

On October 6, 2017, the California Department of Toxic Substances Control (DTSC) announced it is seeking public comment on its new 2018-2020 Priority Product Work Plan (Work Plan) under its Safer Consumer Products (SCP)...more

CPSC Heating Up Before New Commissioner Appointed: Approves a Petition for Rulemaking to Ban an Entire Class of Flame-Retardants

In a split across party lines, the U.S. Consumer Product Safety Commission (CPSC or the “Commission”) recently voted on a largely unprecedented course of action: to ban an entire class of chemicals from popular consumer...more

Food, Dietary Supplement & Cosmetics Update | Vol. IV, Issue 6

by Jones Day on

TOP NEWS - FDA Proposes New Compliance Dates for the Water Provisions of the Produce Safety Final Rule - On September 13, 2017, the Food and Drug Administration issued a proposed rule to extend, for covered produce...more

Off-Label Marketing Case Tossed

by Reed Smith on

Implied Preemption. Off-label promotion. TwIqbal. They make up a core of our posts, yet we never seem to tire of them. Maybe our readers, especially interlopers from the other side of the v., tire of reading about them,...more

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