Check here for our prior posts on this subject and you’ll quickly see the overarching theme. We’ve called it leveling the playing field. In any personal injury lawsuit, treating physicians are probably the most important non-party witnesses. As such, we on the defense side believe, and strongly advocate for, access to these witnesses equal to
As we mentioned some time ago that the removal statute relating to diversity of citizenship, 21 U.S.C. §1446, had been amended to add a “bad faith” exception to what previously had been a flat one-year ban on the removal of any action filed in state court – even if it wasn’t diverse (and thus removable)
The recent Thanksgiving weekend and the hearty meals that exemplify that great American holiday give us a segue to a post on food. Specifically we write today on another interesting and useful case from a federal court in California on the FDA’s primary jurisdiction over product labeling.
The food product at issue in Watkins v.
As we descend toward dotage, we find ourselves more and more often telling jolly stories that we realize, halfway-through and courtesy of the strained expressions on the poor listener’s face, we have told before. When the Drug and Device Law toddlers were underfoot, that wasn’t much of a problem; they loved hearing the same stuff
This post is not from the Dechert side of the blog, since they are involved in Reglan litigation.
Last evening, just before quitting time on the East Coast, we found the Sixth Circuit’s affirmance of the Rule 12 dismissal (that means no expensive discovery necessary) of seven Reglan cases under Tennessee Law. See Strayhorn v. Wyeth Pharmaceuticals, Nos. 12-6195, et al., slip op. (6th Cir. Dec. 2, 2013). The court also affirmed summary judgment against another set of defendants – affiliated with the original innovator manufacturer.
Because of that, we call this type of result a “one–two punch” case. That means that the plaintiffs – who took the generic version of the drug only – are: (1) knocked out of the box against the generic manufacturer by preemption under PLIVA v. Mensing, 131 S. Ct. 2567 (2011), and Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013); and (2) barred from suing the original innovator manufacturer of the drug by the very simple and basic fact that the plaintiff never used that defendant’s product.
First, the generic side:
Plaintiffs had filed the usual kitchen-sink type complaint alleging everything from design defect to consumer fraud. Plaintiffs abandoned consumer and unjust enrichment claims, but appealed dismissal of everything else. Strayhorn, slip op. at 7.
It’s late and we want to go home, but we just learned that the “one-two punch” dismissal of the plaintiffs’ claims in Strayhorn v. Wyeth (that is, generic preemption plus no innovator liability in a generic case) has been affirmed by the Sixth Circuit applying Tennessee law. More about it tomorrow, when we’ve had more
With Thanksgiving over, we move from the relatives to Relators. Not that those two topics are always so different. In some ways, they can be similar. Relatives sometimes complain. Relators always complain. Relatives can be loud. Relators blow big loud whistles. Relators hope to get a big chunk of change from their False Claims Act
The ABA Journal has once again included us in its list of the top 100 blawgs (law blogs). So we’ve got that going for us, which is nice. The ABA Journal has also once again invited readers to vote for their favorite blawgs. If you want to vote for us, it would take you all
We expect that most of our readers enjoyed yesterday with the American rituals of gluttony, football, and traffic. For some, today is an opportunity to see if doing nothing is the best way to combat lingering indigestion. For others, it may be that the lure of transforming scattered leaves into tidy piles of leaves—tidy, that is, until wind or youthful leaps disturb them—is enough to separate butts from sofas. For yet others, there will be an urge to shop for presents for upcoming—or, in an incredibly rare calendar quirk, on-going—holidays (Yes, celebration of the festival of lights has been known to include the giving of socks, something probably not common with Saturnalia or its cultural descendants.) To encourage shopping, the marketers have dubbed this day Black Friday. Although we have heard it for a while, we have not really understood why this moniker would encourage people to spend money. The same name has been given to a number of deadly historical events. The Black Tuesday stock market crash of 1929 was hardly a spur to reckless spending. Other days of the week have been dubbed “Black” to commemorate a range of bad happenings. We are not marketers or shoppers by profession, so, to us, the term Black Friday bespeaks of something bad happening on a Friday.
What is bad, of course, depends on viewpoint. The three NFL games yesterday were each good or bad depending on which team’s fans are asked. That extra slice of chocolate pecan pumpkin cream pie last night may have been really good as you were eating it, but really bad as you realized that the practice of unbuckling your belt after a meal was not just something only other people did. The decision from two weeks ago—a Friday—in LaBarre v. Bristol-Myers Squibb Co., No. 13-1405, 2013 U.S. Dist. LEXIS 23215 (3d Cir. Nov. 15, 2013), was good for the defendant drug manufacturers and for product liability defendants in the affected jurisdictions, but bad for the two plaintiffs on appeal and the other Plavix plaintiffs in the pipeline. One of our first posts was on the district court’s grant of summary judgment against the two plaintiffs in LaBarre, one of several posts that have appeared here on good results from the Plavix litigation. While we marvel at the speed of an appeal that produced an affirmance a little more than ten months after summary judgment, we are equally satisfied with the logic of the decision.Continue Reading A Black Friday for Plavix Plaintiffs
Happy thanksgiving to all. We all have plenty of things to be thankful for. We also have some things we’re not thankful for. This post discusses one of those.
The recent opinion in Rowland v. Novartis Pharmaceuticals Corp., ___ F. Supp.2d ___, 2013 WL 6145119 (W.D. Pa. Nov 22, 2013), has us shaking our heads. That’s not so much because of the legal issue being fought over, but rather because of the machinations that led to a most peculiar result.
Basically, forum-shopping paid off.
Rowland involved three plaintiffs, Rowland, Machin, and Orr, all of whom are (or were) Pennsylvania residents. Rowland, 2013 WL 6145119, at *1. However, none of them filed suit in Pennsylvania. Rowland and Machin brought suit in D.C. and Orr in New York.
Id. at *2.
Rowland is yet another Aredia/Zometa case. We’ve discussed the underlying issue − whether availability of punitive damages should be determined under: (1) the law of a corporate defendant’s principal place of business, or (2) the law of the place of the plaintiff’s injury – before. See here and here.Continue Reading Making Forum-Shopping Pay