The Supreme Court will hear oral argument in Bruesewitz v. Wyeth on Tuesday, October 12. Our prior Bruesewitz posts are here. We’ve taken a quick look at the briefs (look for #09-152), and offer the following points for argument watchers to look for:
(1) The most important interplay at oral argument will be how
Sometimes we discus broad issues, like TwIqbal; sometimes we don’t. Today we’re not.
While we don’t claim to know much about the specifics, we’re aware that the FDA is going (or maybe already has) to lower the classification of percutaneous transluminal coronary angioplasty (that mouthful is thankfully abbreviated “PTCA”) catheters from Class III to
Whenever the New Jersey Supreme Court gets its hands on a class certification decision, you never know what to expect. Sometimes, it’s great news (no class action for Vioxx TPPs!). Some times, it’s downright scary. Take, for example, the recent Relacore decision, issued just in time to kick off Halloween season. In Lee v. Carter-Reed Co., LLC, __A.3d __, 2010 WL 3781595 (N.J. Sept. 30, 2010) (no page numbers available yet), the court lauded the class action as a mechanism to “balance the scales of power between the putative class members and a corporate entity” (uh-oh…), and found that class certification was appropriate for a putative class of New Jersey consumers who purchased Relacore, a dietary supplement pill.
The trial court had denied class certification, seizing on a number of “individualized factors” that would render the class action unmanageable. The Appellate Division affirmed the trial court, finding that individual issues predominated over common issues. The supreme court reversed, ruling that both lower courts “failed to accept as true the allegations asserted in plaintiff’s complaint or to view the pleadings in a light favorable to plaintiff, as required by our jurisprudence. Had those courts…accepted plaintiff’s representations that [the defendant’s] advertising of Relacore was no more than a passel of lies, then they should have concluded that the common issues of fact and law predominated over individual ones and that the case was not beyond the management skills of our capable Superior Court judges.” (We do have to tip our hat to the turn of phrase, ” a passel of lies.” Great name for an up-and-coming indie band, a hardboiled detective novel, or a mediocre thriller starring Russell Crowe, Clive Owen, or Leo DiCaprio chasing after the truth in some exotic locale. But we digress…)Continue Reading Darkness Falls Across The Land (Of New Jersey)
In July, we asked whether plaintiff’s counsel’s outrageous conduct in a Fosamax trial would be rewarded or punished. Yesterday the court, in effect, rewarded that conduct by refusing to order a new trial. In re Fosamax Products Liability Litigation (Boles v. Merck & Co.), No. 06-MD01789-JFK, slip op. (S.D.N.Y. Oct. 4, 2010). The court
Stop us if you’ve heard this one before. Actually, you mostly have, at least if you’ve been paying attention to our posts (here, here, and here) on the Bartlett v. Mutual Pharmaceuticals litigation. Judge LaPlante has issued a number of rulings, some of which we like, and some of which we’re not sure about, but all of which are well-written and thoughtful. Peter King in Sports Illustrated has a column called “Things I Think I Think.” We think we think Judge LaPlante’s latest Bartlett decision is pretty good.
By now we’re used to how middle-brow tv shows start with a “Previously on [Hill Street Blues or Weeds or Mad Men, etc].” So, here goes our “previously in Bartlett:” Plaintiff claimed she came down with Stevens Johnson Syndrome after taking a drug called Sulindac, an anti-inflammatory NSAID. Plaintiff’s complaint was chock-full of theories. Before trial, the court made some preemption rulings, which we viewed as a mixed bag. The court also granted summary judgment on some (but not all) of the claims. Of particular note, the court granted summary judgment on the failure to warn claims because the prescriber never read the label. Some failure to warn claims discussed items other than the label, such as the failure to issue a medication guide, Dear Doctor letter, black box warning, or educational materials. The court held that these non-label theories ran afoul of the learned intermediary rule or, more simply, were devoid of legal authority.
The case went to the jury, which found for plaintiff on strict liability design defect. After summary judgment and before trial, Plaintiff filed a brief in support of three negligence theories:
Like we said, you’ve heard this before. The court correctly concluded that Plaintiff was trying to “resurrect” her failure to warn theories, “in contravention of this court’s summary judgment ruling.” Bartlett v. Mutual Pharmaceutical Co., 2010 WL 3659789 at *1 (D. N.H. Sept. 14, 2010). Plaintiff was persistent, but not subtle. Sometimes losing parties (even if they win on something else) keep rearguing losing positions, hoping to wear the judge down. That apparently doesn’t work with Judge LaPlante.Continue Reading A Third Significant Decision in Bartlett v. Mutual Pharmaceutical
The Second Circuit evidently has a higher opinion of Judge Weinstein’s Zyprexa learned intermediary rulings than it did of his decision to certify a class action in that litigation. Up on the Second Circuit’s website this morning are eight summary affirmances of decisions dismissing individual Zyprexa claims. Seven are on the ground that, for one
We started out the week with our Come At Me Bro post rebutting some commentary from the other side about the games plaintiffs play with protective orders. So we suppose it’s appropriate to close the week on the same note, responding to criticism from a different plaintiff-side blog directed at another of our posts. We don’t mind being criticized; we’re lawyers. That’s what we do for a living, and it’s what the other side does to us. It’s not called an “adversary” system for nothing.
But here on the blogosphere, unlike in litigation, there’s no notice. We don’t have to email someone that we’ve raked over the coals, and neither does anybody else. Somebody drops an anvil on us; we throw a bomb back atcha. It resembles the Spy vs. Spy cartoons we read in Mad Magazine when we were kids.
Maybe we’re catching more flack these days because there are more, better plaintiff-side blogs. One of the best on the other side is Max Kennerly’s “Litigation & Trial” – it certainly looks prettier than ours, with a nifty barbarians-at-the-gates graphic at the top. That graphic reminds us of some mass torts we’ve known. Did Atilla pillage on contingent fee?
Anyway, Max is pretty smart. His posts are always thoughtful, if usually misguided. Come to think of it, he’d probably say the same thing about us. He has some thoughts about our Spherical Error II post from a couple of weeks ago about the weird ways that the court construed the Pennsylvania consumer protection statute (the “UTPCPL”) in Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 2010 WL 3527601 (E.D. Pa. Sept. 8, 2010).Continue Reading Blog vs. Blog