A couple of weeks ago we posted about the one-two punch of generic preemption and product identification disposing of most of the claims in the Darvocet MDL. Well, that combination has since landed a third punch that sent still more plaintiffs reeling.
It seems that the original branded manufacturer of the product was also embroiled
Some of our friends suggested that we honor the NCAA basketball tournament by engaging in a little bracketology. Presumably, they want us to run some legal concepts, cases, or personalities through brackets, ultimately selecting an overall champion. For those five or six of you who did not fill out March Madness sheets, bracketology is a way of deciding a winner by pairing off items, deciding winners, with winners advancing to confront other winners until there is one ultimate winner. Theoretically, bracketology can be as useful as, say, a decision-tree in evaluating alternatives or determining a course of action. Mostly, it’s a harmless diversion. Our favorite recent example was a bracketology treatment of characters from the late, lamented HBO series The Wire.
Bracketology can be fun. But it doesn’t really work for our purposes. Creation of an initial bracket requires a seeding of the contestants. That is, at the outset you first make an assessment of relative value or merit. The excitement of the NCAA tournament is how reality can play havoc with the seeding. (Ask anyone who picked Duke or Missouri to make it to this year’s Final Four.) Injuries, sudden and surprising ineligibilities, 19 year-olds calling timeouts when all timeouts have been used up, screwy turnovers, and miracle shots can all create improbable results. But an abstract exercise is different. It lacks the fluidities and frictions of real life. Doesn’t the initial assessment pretty much predetermine the outcome? How can there be any upsets? In fact, that is what happened with The Wire bracket. Everyone knew right away that Omar would likely win as best character. President Obama picked Omar. And, indeed, Omar won.
When people practice bracketology, the major issue is the extent to which one follows or departs from the “chalk.” The “chalk” means picking the favorites. It is a boring strategy, but is mostly effective. For every amazing underdog success story, such as Butler, George Mason, and VCU, there are way more Kentuckys, North Carolinas, and Michigan States. Odds are that this year’s Final Four will include at least three number 1’s or 2’s. Maybe one surprise team will sneak in. If one followed the chalk for The Wire bracket, one simply had to pick either Omar or Stringer Bell to triumph. (If you haven’t seen The Wire, shame on you. It certainly makes our Final Four of the best television dramas of all time.)
All of which is to say that we won’t be doing Drug and Device Law bracketology. We would simply end up going with the chalk. Plus, we’re not sure how to do the graphics for the brackets. If we were to pair off legal defenses, we’re fairly sure that TwIqbal, Daubert, Preemption, and Statute of Limitations would be our Final Four. A couple of posts ago we discussed how preemption is so strong because it can preclude cases that otherwise possess substantive merit. That is also true with the statute of limitations. We like TwIqbal because it gets rid of junk pleadings, and we like Daubert because it gets rid of junk science. It would be nice if courts followed the chalk and applied these doctrines to send the bad cases away, like Kentucky dispatching an inferior opponent.Continue Reading No Bracketology for Us: Chalk Up Wins for TwIqbal and Statute of Limitations
A couple of weeks ago – yeah, that’s right, on February 29 – the Supreme Court issued a ruling preempting asbestos product liability claims in Kurns v. Railroad Friction Products Corp., 2012 WL 631857, slip op. (U.S. Feb. 29, 2012). We’re only now getting around to posting about it because, frankly, there’s not a
On a number of occasions – more during the first couple of years of the blog than recently – we opposed causes of action that would impose liability on drug/device manufacturers for investigational drugs that worked, and indeed worked well. By that we mean claims by research subjects demanding one form or another of continued
We were delighted when Jim Dedman of the Abnormal Use blog asked us to help celebrate the twentieth anniversary of My Cousin Vinny. We cannot resist smiling when we think of that movie. 1992 was a big year for some of us – marriage, changing jobs, and buying a house in LA just before
Since we blogged about the Supreme Court’s certiorari grant in Kiobel v. Royal Dutch Petroleum, 10-1491, we figured we owe our readers an update about a significant status change.
As we mentioned before, the Court accepted the appeal in Kiobel to answer a rather general question that nonetheless could affect drug/device companies caught up