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Products Liability Consumer Protection Civil Procedure

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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

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

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

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

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

Eleventh Circuit Has No Appetite for Non-GMO Claims

The U.S. Court of Appeals for the Eleventh Circuit affirmed summary judgment in favor of Chipotle Mexican Grill in a false advertising action, holding that the plaintiff failed to demonstrate an actual injury based on the...more

Fortune Favors the Quick (to Report): Judge Slaps Spectrum Brands with $1.9 Million Penalty in DOJ/CPSC Tag-Team Enforcement...

A federal district court in Wisconsin recently hit Spectrum Brands Inc. (Spectrum) with civil penalties of $1.9 million for violations of the Consumer Products Safety Act (CPSA). The court’s 23-page opinion is a strong...more

Product Liability Update: October 2017

by Foley Hoag LLP on

Massachusetts Federal Court In Multi-District Litigation Holds Under Six States’ Laws That Manufacturer Of Brand-Name Pharmaceutical Is Not Liable For Injuries Caused By Generic Equivalents Whose Manufacturers Were Required...more

The Class Action Chronicle Fall 2017

This edition focuses on rulings issued between May 15, 2017, and August 15, 2017. In this issue, we cover four decisions granting motions to strike/dismiss class claims, five decisions denying such motions, 27 decisions...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

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

The Ninth Circuit’s Food Court Menu: A Status Update

A few years back, the Northern District of California was dubbed the “food court” based on the influx of food misbranding class actions claiming that alleged FDA regulatory infractions constituted violations of California...more

Products Liability? Prove It

by Nexsen Pruet, PLLC on

Under South Carolina law, a products liability case may be founded in several theories, including warranty. Regardless of the chosen theory, however, a plaintiff must establish (1) he was injured by the product; (2) at the...more

Medical Monitoring Class Certification Fails

by Reed Smith on

Normally, when we think of decisions relating to medical monitoring, the issue is whether a state will recognize medical monitoring for uninjured people as a separate claim or relief that can be sought under an existing...more

Lack of Substantiation Theories in False Advertising Cases—The Burden Lies on the Plaintiff

by Cozen O'Connor on

Often when we think of product liability we think of a product that doesn’t function as intended and causes some sort of damage resulting in warning, design and/or manufacturing defect claims. However, another important...more

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