2011

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Our continuing interest in removal/remand strategies for extricating our clients from state-court hellholes comes as no surprise to anyone who’s been following our blog for any length of time.  In particular, we’ve advocated and (we flatter ourselves) helped to popularize the technique of pre-service removal – see our most recent prior post here.
Basically, pre-service removal eliminates a loophole in the federal removal statute that allows plaintiffs to keep cases in which diversity of citizenship indisputably exists in state court through the device of suing an in-state defendant – if that defendant has been “properly joined and served.”  Pre-service removal eliminates this “forum defendant” loophole by removing the action to federal court before the plaintiff has sued the in-state defendant (or, indeed, has served anybody at all).
We’re pleased to pass along a new win on this issue in New Jersey, which is pretty much the pre-service removal “ground zero,” given the number of pharmaceutical manufacturers with the misfortune of being headquartered in this notoriously pro-plaintiff jurisdiction.  The case is Poznanovich v. AstraZeneca Pharmaceuticals LP, No. 3:11-cv-04001-JAP-TJB, slip op. (D.N.J. Dec. 12, 2011).
Poznanovich is a Nexium case where the plaintiff – an Illinois resident attracted by New Jersey’s pro-plaintiff reputation – chose to sue in New Jersey state court.  Two named defendants, AstraZeneca LP and KBI Sub Inc., were allegedly New Jersey citizens, but the other defendants managed to remove the case before either of those defendants was served with process.Continue Reading New Stuff #2

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An anonymous friend of the blog recently passed along an unusual MDL order, along with the question had we ever seen anything like it?  The order (copy here) denies an uncontested motion to designate 34 cases as tagalongs in the Aredia/Zometa MDL.  As the order reflects, the 34 plaintiffs had sought…

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Just when we’re disgruntledly packing away our “Fry Mumia” buttons for the last time (guilty as sin, that one was), we get word from New York that the plaintiff in one of Dechert’s Tylenol cases lost a Frye-based appeal.  Unfortunately, because Ratner v. McNeil-PPC, Inc., ___ N.Y.S.2d ___, 2011 WL 5865657 (N.Y.A.D. Nov. 22, 2011), is one of our cases, we can’t supersize this post.  But we can give you an outline of what happened.
First, Ratner is an example of the philosophy behind this blog – that a defense win anywhere helps defendants everywhere.  A few years ago we (well, Bexis) participated in an amicus brief filed by the Product Liability Advisory Council, Inc. (“PLAC”) in a case called Parker v. Mobil Oil.  That appeal turned out well, producing an excellent Frye-based expert opinion – Parker v Mobil Oil Corp., 857 N.E.2d 1114 (N.Y. 2006).  Parker, in turn became the foundation for the recent win in Ratner.
So what happened?
Ratner involved a drug containing acetaminophen.  Massive overdoses of this drug can cause liver failure, which is not disputed.  Ratner, however, did not involve any sort of overdose – plaintiff claimed only routine, therapeutic doses of the drug, significantly expanding the scope of liability, if allowed .  Fortunately, the trial court found no valid scientific basis for the claim and granted summary judgment.  In Ratner, the Appellate Division affirmed, holding that none of the plaintiffs’ four experts had scientifically valid causation opinions.Continue Reading OTC Drug Plaintiff Fit To Be Fryed In New York

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We can’t discuss the substance, because Dechert’s involved, but recently, the Pennsylvania Supreme Court accepted an appeal in a prescription drug product liability case, Daniel M. v. Wyeth Pharmaceuticals, Inc., to decide the following issue:

Whether the Superior Court erred in reversing the trial court’s grant of JNOV for [defendant] on [Respondents’] punitive damages

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            We could have gone with “if at first you don’t succeed, try, try again.”  Or, Dory’s famous “Just keep swimming” from Disney’s Finding Nemo.  But, when talking about plaintiffs, slinging mud just feels more appropriate (to us).  And, I guess somewhere in here is a backhanded compliment about being persistent, but really we would

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Last week we attended ACI’s Annual Drug and Medical Device Litigation Conference. As always, it was nice to be in New York City during the holiday season (though the persistent drizzle was less than festive) and even nicer to see so many friends.

The presentations were quite good and up-to-date. The Mensing discussion was especially…

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Those of you who check our post-Mensing generic preemption scorecard regularly are aware that a preemption massacre has been going on in Louisiana federal court.  By our count, just since October there have been eight preemption-related dismissals down in pelican country (don’t blame us, y’all put it on your license plate).  Most of them…

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Yesterday we blogged about co-promotion, an obscure topic if ever there was one.  Today we’re blogging about promotion that’s considerably less obscure – self promotion.  We’re not all that much into self-promotion here on the Drug And Device Law Blog, and before you start throwing things and telling us we’re a pack of blogging…

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“Co-promotion,” for those not familiar with the term, is a contractual arrangement between two drug companies.  The details will differ, but basically one company has a drug but not enough sales people.  The second company – the co-promoter – has a larger (or in some other way better situated) sales force, and no competing drug.…

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We recently noticed that there are finally official United States Reports page numbers for Wyeth v. Levine.  That means that the days of citing the Supreme Court reporter for Levine are now over.  Thus, the Levine decision may now be cited like any other Supreme Court case:

Wyeth v. Levine, 555 U.S. 555

Drug & Device Resources

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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