This post is about un-preempted fraud on the FDA claims and how to approach them….
“Heresy!” We hear you shout. “There’s no such thing as an unpreempted fraud on the FDA claim – at least one not brought by DoJ on behalf of the FDA itself. You guys have said so yourselves, in your
Readers of this blog know that we have strong opinions about many issues. We like Twombly/Iqbal. We hate junk science. And we really, really like preemption.
On some issues, however, we don’t have strong views, such as most choice-of-law issues. There are some choice-of-law issues about which we care deeply – for example we
We have no intention of wading into the treacherous (and heated) debate about Citizens United v. Federal Election Com’n, ___ S. Ct. ___, 2010 WL 183856, slip op. (U.S. Jan. 21, 2010), an early frontrunner for hot-button Supreme Court decision of the year, especially after President Obama’s State of the Union speech. We leave it to the general constitutional law types to debate the pros and cons of the application of the First Amendment to campaign contributions.
But to our readers (some of whom are also clients): Pssst – we have elected judges here in Pennsylvania, and we could do with more good ones.
But here at Drug And Device law, we are interested – very interested – in specific aspects of First Amendment jurisprudence. Just click on the First Amendment topic tab over on the right hand side of your screen, and you’ll see what we mean.
Thus we’ve studied the lengthy opinion in Citizens United to divine whether there are any usable soundbites that we could employ in support of a First Amendment challenge to FDA’s ability to regulate off-label promotion (previously blogged about here, here, here, and here – and elsewhere).Continue Reading Weighing In On Citizens United
You might not want to read this post around mealtime. But it does offer food for thought on an old bete noire, negligence per se. Louie DePalma, a character in one of our all-time favorite sitcoms, Taxi, once hired a lawyer who advertised that if he lost a case, he’d “eat a bug”.
Well we think so. And apparently somebody else does so too. The “Health Expert Blog” has listed us among its “Top 50 Medical Ethics Blogs” under the heading Medical Law Blogs. We thank them for the recognition – deserved or not.
Twombly/Iqbal has (have?) a lot of us on the defense side looking more closely at pleadings. Here’s another idea to kick around – is it proper for an attorney simply to dump a slew of allegations from a document prepared by someone else – say, a complaint, consent decree, or other document filed
The aberrant Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008), decision had its first birthday a couple of months ago – not that we’re celebrating, or anything.
It would be more accurate to say that we’re doing everything we can do to strangle Conte in its crib. If you’re new around
Two of the cases on our medical device preemption scorecard have been:
Johnson v. Endovascular Technologies, Inc., 2008 WL 3139424 (Cal. Super. May 19, 2008). Express warranty and failure to test claims are preempted under Riegel. Allegations amounting to fraud on the FDA are preempted by Buckman. Plaintiff has appealed this case.
McGuan v.
Appropriately – since here in Philadelphia we’re being snowed in (again) – today’s post concerns Winters v. Alza Corp., 2010 WL 446451, slip op. (S.D.N.Y. Feb. 4, 2010). Winters is an example of how remand motions should be decided – when federal courts don’t elevate docket control uber alles.
Winters is was originally filed
It is not always sunny in Philadelphia for product liability lawyers – especially defense lawyers like us. Faithful readers have heard us gripe about the state of Pennsylvania product liability law – see, for example, this and this – and with good reason. Pennsylvania strict liability law has been a confusing mess for years. The