The result for the defendant (a “distributor of ophthalmologic supplies”) in the False Claims Act decision, United States ex rel. Fesenmaier v. Cameron-Ehlen Group, Inc., ___ F. Supp.3d ___, 2024 WL 489708 (D. Minn. Feb. 8, 2024), was so terrible that something good ended up happening.Continue Reading FCA Verdict Slashed as Unconstitutional Excessive Fine
Remote Depositions in MDLs 2.0
One of the blogposts that generated a lot of “Thanks, I needed that” responses from our readership was our 2022 post, “Remote Depositions in MDLs.” For that reason, we have updated it by adding references to additional MDL orders on that subject that have been entered since early 2022. We pay particular attention to MDL orders because, due to their stakes, every procedural jot and tittle is gone over with a fine-toothed comb. The “litigate everything” mentality in MDLs produces the most comprehensive consideration of issues that arise in remote depositions generally. We asked one of our crack legal assistants to look for additional MDL orders during this time frame to see what MDL transferee judges – advised by the parties – have had to say most recently about the conduct of remote deposition.Continue Reading Remote Depositions in MDLs 2.0
Guest Post – Are Remote Deposition Costs Recoverable by the Prevailing Party? Maybe, Yes, Maybe, No.
Here is the latest guest post from our Reed Smith colleague, Kevin Hara. He examines whether a prevailing party in litigation can recover, as “costs,” the expenses of witness depositions conducted remotely – a question that has arisen with increasing frequency since the COVID-19 pandemic prompted a general trend towards use of remote depositions. Since our clients could be on either side of this issue, Kevin’s research addresses both sides. As always, our guest bloggers deserve all the credit (and any blame) for their efforts.Continue Reading Guest Post – Are Remote Deposition Costs Recoverable by the Prevailing Party? Maybe, Yes, Maybe, No.
PREP Act Preemption Scorecard
We’ve discussed decisions applying preemption under the Public Readiness & Emergency Preparedness Act (hereafter “PREP Act”), 42 U.S.C. §247d-6d, on several occasions since the COVID-19 pandemic began. At this point, some four years after the COVID-19 pandemic declaration, we believe that sufficient PREP Act preemption precedent has accumulated, and that the caselaw is sufficiently
Could the Supreme Court Blindside the FDA on the First Amendment?
On March 18, 2024, the Supreme Court heard argument in a matter, National Rifle Association of America v. Vullo, No. 22-842, that from its caption would seem to have nothing to do with our sandbox.
But it might.
One of the issues before the Supreme Court in NRA is whether administrative action, labeled only as “guidance” (in NRA, certain letters issued by the head of the New York State banking agency) were sufficiently coercive – despite not being presented as anything “final” – that they could unconstitutionally restrict speech in violation of the First Amendment. Appellant NRA, represented by the American Civil Liberties Union (among others), contends that the defendant “issued formal guidance letters” that “promised enforcement leniency” and “urged” the banks it regulated to cease doing business with the NRA for political reasons. Petitioner’s Br., at 1. Even though this “guidance” neither had nor claimed to have force of law, it had the desired effect – causing regulated entities to do what the government wanted for “fear of losing our license to do business.” Id. at 8 (citation and quotation marks omitted).
To us, the analogy is obvious. The FDA also relies heavily on “guidance” that it likewise considers non-“final,” and has similarly done so in ways that impinge on First Amendment-protected speech.Continue Reading Could the Supreme Court Blindside the FDA on the First Amendment?
Another Weird Alabama Decision
Alabama has always had some rather unusual jurisprudence. In product liability, the Yellowhammer State doesn’t have negligence or strict liability, but rather a hybrid called the Alabama Extended Manufacturers Liability Doctrine (“AEMLD”). See Casrell v. Altec Industries, Inc., 335 So.2d 128, 132-33 (Ala. 1976). More recently, the Alabama Supreme Court twice adopted the extreme pro-plaintiff innovator liability theory in Wyeth, Inc. v. Weeks, 2013 WL 135753 (Ala. Jan. 11, 2013), withdrawn and superseded, Wyeth, Inc. v. Weeks, 159 So.3d 649 (Ala. 2014). On that occasion, the Alabama legislature overruled the court. See Ala. C. §6-5-530. More recently than that, the same court authorized plaintiffs to perjure themselves and claim that they would have ignored their doctors’ recommendations in order to claim causation in learned intermediary cases. Blackburn v. Shire U.S., Inc., ___ So.3d ___, 2022 WL 4588887, at *11-12 (Ala. Sept. 30, 2022). Most recently, and most notoriously, the Alabama Supreme Court declared frozen embryos to be people – at least for the purposes of tort law. LePage v. Center for Reproductive Medicine, P.C., ___ So.3d ___, 2024 WL 656591, at *4 (Ala. Feb. 16, 2024). Who knows? By 2030, Alabama might attempt to count blastocysts as “people” for purposes of the census – although not for tort purposes, since the legislature appears to have stepped in again.
We read another bizarre – if not nearly as notorious – Alabama law decision recently. Ahmed v. Johnson & Johnson Healthcare Systems, Inc., 2024 WL 693078 (S.D. Ala. Feb. 20, 2024), reconsideration & certification denied, 2024 WL 947447 (S.D. Ala. March 5, 2024). What’s bizarre about it? It allowed a plaintiff in a medical device product liability case (hip implant) get to the jury without any medical expert testimony on causation. Id. at *16 (entitled “Summary Judgment is not Required on All of Plaintiff’s Claims Even Though She Offers No Expert Evidence Regarding Medical Causation”).Continue Reading Another Weird Alabama Decision
Rounding Up the Eleventh Circuit Zombie
In Puerto Rico v. Franklin-California Tax-Free Trust, 579 U.S. 115 (2016) (initially discussed here), the Supreme Court drove a stake through the heart of the misbegotten “presumption against preemption” in express preemption cases.
[B]ecause the statute contains an express pre-emption clause, we do not invoke any presumption against pre-emption but instead focus on
No Expert Do-Overs
In our recent post on the Onglyza affirmance, we mentioned that the Sixth Circuit rejected the plaintiffs’ attempt at a do-over after the expert they chose to ride into battle with was unhorsed by Rule 702. The MDL plaintiffs flunked both “good cause” grounds for modifying the existing expert scheduling orders. First, plaintiffs were not
Tear Down the Goalposts – Rutgers Wins
Bexis was a mere college freshman, and a Princeton football manager, on September 28, 1974. In the first game of the season, Rutgers played Princeton at Princeton’s old (and rather decrepit) Palmer Stadium. With about three minutes to go and Rutgers up 6-0, Rutgers fans swarmed the field and tore down both sets of goalposts. When Princeton tied the game up with less than half a minute left, without goalposts we could not kick an extra point. A two point conversion failed, and Rutgers escaped with a tie.
Not quite half a century later, Rutgers scored an actual win. This time Bexis is pleased. In Children’s Health Defense, Inc. v. Rutgers, the State University of New Jersey, ___ F.4th ___, 2024 WL 637353 (3d Cir. Feb. 15, 2024) (“CHD”), the Third Circuit affirmed the right of a publicly supported university to require COVID-19 vaccination as a prerequisite to its students’ in-person attendance. We blogged about this outcome in the district court, and its precedential affirmance is even more significant.Continue Reading Tear Down the Goalposts – Rutgers Wins
Preemption as a Backup for the Learned Intermediary Rule
This post is only from the non-Butler Snow part of the Blog.
As our 50-state survey of the learned intermediary rule demonstrates, the rule now applies in all fifty states. That includes statutes or high court decisions from 38 states and the District of Columbia, intermediate state appellate decisions from four more states, and federal appellate Erie predictions from seven more states and Puerto Rico. All told, only three states lack binding appellate precedent approving of the learned intermediary rule: Rhode Island, South Dakota, and Vermont. All three of those states have federal district court precedent, and Rhode Island has unpublished federal appellate authority in addition.
Then there’s Oregon. That state was an early adopter of the learned intermediary rule, see McEwen v. Ortho Pharmaceutical Corp., 528 P.2d 522, 528 (Or. 1974), but a subsequent decision held that the Oregon product liability statute, which basically adopted Restatement §402A in toto, meant that the rule did not apply in strict liability cases, because §402A did not reference the rule. Griffith v. Blatt, 51 P.3d 1256, 1262 (Or. 2002).
But in Oregon strict liability litigation, or anywhere else that some plaintiff argues that for some reason the rule doesn’t apply, there is a backup argument – implied preemption.Continue Reading Preemption as a Backup for the Learned Intermediary Rule