In one sense, the decision in Sadler v. Advanced Bionics, LLC, 2013 U.S. Dist. LEXIS 47964, (W.D. Ky. Apr. 3, 2013), is a mixed bag (we said that last week about the court’s in limine decisions as well). The defense moved to exclude the testimony of the plaintiff’s FDA expert in many areas
A lot of things happened last week – so much that our usual wrap-up search last Friday took over three hours, which is more than twice as long as normal. Since there were too many cases of interest to blog about separately, we’re doing the next best thing, which is to give our readers a
Maybe it is the hopeful anticipation of the cherry blossoms or the long-awaited spring thaw, but we were feeling generous as we read three recent decisions that touched on some recurring issues in drug cases these days. So, in part to save Bexis from having to address these with many others in his roundup, we
“April is the cruellest month,” according to T.S. Eliot, and maybe that makes sense if one lives in England or New England, where early Spring toggles constantly between sun and mud. The month is a tease and a torture. Another poet was getting at much the same thing when he wrote:
You know how it
We update most of our Scorecards and Cheat Sheets on a real-time basis, because we have a good handle on the new decisions as they arise. Some of them, however, are updated more sporadically, mostly because they involve issues that go beyond purely drug/device matters. Our cheat sheet listing favorable e-discovery decisions involving plaintiffs’ social
Maybe it was a recent couple of days spent in the Lancaster, Pennsylvania area, but when we saw a case about the BAAA – our first thoughts were along the lines of Old McDonald’s Farm. But today’s BAAA is significantly less known than either Dolly (the first cloned mammal) or Lamb Chop (the sock puppet)
It seems that there’s a reason to blog about Pom Wonderful or a similar case almost weekly, and the cases always seem to come from California. So now we have Brazil v. Dole Food Company, 2013 WL 1209955 (C.D. Cal. Mar. 25, 2013). This one is a class action (Pom Wonderful was a business dispute) in which the plaintiff claims that certain Dole food products were improperly marked as “natural,” “fresh,” “sugar free,” “low calorie,” or the like. Plaintiff’s claims are the usual suspects: violations of California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”) and Consumer Legal Remedies Act (“CLRA”), violations of the Song-Beverly Consumer Warranty Act and Magnuson-Moss Warranty Act, and an unjust enrichment claim.
Now, the outcome was generally good. The court dismissed all of plaintiff’s claims. But some bad came with it. The dismissals of plaintiff’s UCL, FAL and CLRA claims were without prejudice because those particular dismissals were based on plaintiff’s failure to satisfy FRCP 9(b)’s heightened pleading standards for fraud. The court rejected the Defendant’s argument that those claims should be dismissed “with prejudice” as preempted by the food labeling portions of the FDCA. So the plaintiff has the opportunity to replead them.
As background, you may recall that the 9th Circuit in Pom Wonderful, upheld the dismissal of Lanham Act claims about food labeling because they were barred by the FDCA, which can be enforced only by the United States, not private plaintiffs. And last week on remand, the Pom Wonderful district court dismissed plaintiff’s remaining state-law claims as preempted by the FDCA. So why wouldn’t the Brazil court dismiss plaintiff’s food claims as preempted?Continue Reading More Food Litigation and, Yet Again, More Pom Wonderful