The Drug and Device Law Blog is four years old. Our first post – our once lampooned but more recently copied “Disclaimers and Terms of Use,” went up four years ago yesterday. Our first substantive post…. Well, that took a little longer. We’ve survived four years now.
We celebrated our first birthday here
Shortly after Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) was decided, we put up a post, “Riegel at (Almost) Six Months,” where we surveyed the immediate aftermath of the Supreme Court’s preemption decision. Then we did another at “Riegel” at 1 ½” post in July of last year.
The
From out of left (well, really, right) field. The lack of FDA approval, by itself, doesn’t mean anything.
Five justices of the Supreme Court conclude, in the context of a death penalty appeal, that the fact that the state got a drug to be used in the execution from an overseas source that was not
We confess that we read McAdams v. Medtronic, Inc., 2010 WL 3909958 (S.D. Tex. Sept. 29, 2010), a while ago, but we weren’t sure what to make of it. On the one hand, there’s an interesting idea in there. On the other hand, it didn’t win in McAdams. We still don’t know if
Here’s how a typical mass tort oral argument goes. No matter whose motion it is, the plaintiffs’ lawyers beat us to the lectern and deliver a Faulknerian riff about how awful our clients are (kicking dogs, blowing up the old folks home, lurking on the grassy knoll in Dallas in 1963, etc). If the plaintiffs’ lawyers momentarily allude to the matter at hand, it comes as a genuine surprise. It’s sort of like when the great American playwright George S. Kaufman would sit backstage while the Marx Brothers were performing in one of his plays, and Kaufman would be heard sporadically to mumble, “Wait – that last line is actually in the script.”
Eventually we get a chance to slip in a few words about the pertinent cases, policy, and facts. And then we sit down. What happens next? Before the judge can offer a homily about how the parties should work things out and spare the court the need to, you know, decide something, other plaintiff lawyers march to the microphone to emphasize again how horrible the defense side (both clients and lawyers) is. Think back to the scene early in Blazing Saddles, where genuine Western gibberish is followed by a chorus of a bunch of guys harumphing that “Johnson is right!”
That’s how it felt to us after we penned a little ditty criticizing a motion by Aredia/Zometa plaintiffs to undo a protective order. We didn’t much care for the plaintiffs’ maneuvering to get broad-based discovery after agreeing to a protective order, then griping about alleged over designation of confidential documents attached to motions, and then asking for elimination of confidentiality protections for all documents, not just those attached to the motions. Along the way, we offered a few bromides about how plaintiff lawyers abuse the whole confidentiality process, ramping up expenses and seeking to use the confidential documents as extra-legal leverage. Pretty tame stuff. Who could disagree?
Believe it or not there are a couple of plaintiff blogs out there every bit as brilliant and charming and poetic as this one. And they pummeled us. First, Ronald Miller at the Drug Recall Lawyer Blog said it was a case of the “Pot Calling the Kettle Black,” and that it was really defense lawyers who abuse the confidentiality process and seek to run up expenses.Continue Reading Confidentiality: We’re Telling You for the Last Time
The Third Circuit issued a whopper of a preemption opinion on Friday in Farina v. Nokia, Inc., ___ F.3d ___, 2010 WL 4138502 (3d Cir. Oct. 22, 2010), unanimously holding that state-law claims that cellphones emitted harmful radiation were preempted. We’re not going to delve into Farina very much because: (1) cell phones are
A tip of the cypercap to Dave Gossett at Mayer Brown, who has just forwarded to us the latest Medtronic preemption win. It’s Cenac v. Hubble, C.A. No. No. 09-3686, slip op. (E.D. La. Oct. 21, 2010). After letting the plaintiffs amend their complaint to add “parallel” claims, the court in Cenac grants
We can’t say much, because Dechert’s involved in the litigation, but the Ninth Circuit has just affirmed (unpublished – but a win is a win is a win), the Rule 12 of the Amgen third-party payer action over alleged off-label promotion of Arasnep and Epogen. The grounds:
(1) Failure to plead RICO and UCL (California’s
We mentioned late last month, back when everybody was still high on the Phillies, that the Supreme Court had granted certiorari in several interesting opinions. Two of those decisions, Brown v. Meter, 681 S.E.2d 382 (N.C. App. 2009), appeal denied, 695 S.E.2d 756 (N.C. 2010), and Nicastro v. McIntyre Machinery America, Ltd., 987 A.2d 575 (N.J. 2010), deal with personal jurisdiction in product liability matters brought in state court. Here, copied from our earlier post, are the questions that the Supreme Court agreed to hear:
Brown:
Whether a foreign corporation is subject to general personal jurisdiction, on causes of action not arising out of or related to any contacts between it and the forum state, merely because other entities distribute in the forum state products placed in the stream of commerce by the defendant.
Nicastro:
Whether, consistent with the Due Process Clause and pursuant to the stream-of-commerce theory, a state may exercise in personam jurisdiction over a foreign manufacturer when the manufacturer targets the U.S. market for the sale of its product and that product is purchased by a forum state consumer.
We can hear the yawns already. “Who the [word uttered when Uribe hit 9th inning sacrifice fly] cares.” Well, product liability defendants and their lawyers should care. We’ll try to explain what’s going on – which is easier than to explain Oswalt was pitching rather than Lidge last night.
“Personal jurisdiction” is the phrase given to the collection of questions that arise when a party asks, “What the heck am I doing before this court? I’ve never had anything to do with [fill in state].” We’re only dealing with defendants today, since that’s what both Brown and Nicastro deal with, but it’s not unknown for plaintiffs to ask the same question – particularly when nationwide class actions are brought in state court.Continue Reading Personal Jurisdiction – A Primer
It’s no secret that non-medical device preemption arguments haven’t been as successful after Wyeth v. Levine as they were before. Here at the Drug and Device Law Blog, we like to provide information, but we also follow a defense Hippocratic Oath not to do harm by doing the other side’s research for them. Our “