One of the best developments in drug and device law over the last 15 years has been the demise of the class action. Although seen by plaintiffs and some commentators as convenient devices that can be used to resolve large numbers of claims in bunches, courts have generally come to understand that class actions just
Because Bexis is updating chapter two (information-based claims) of his book, he has some ideas for some shorter lists of interesting cases. Here’s one. What follows are all the cases Bexis knows about that have dismissed consumer fraud/protection claims because the conduct under attack fit within the language of the statute’s “safe harbor” for
Over three years ago (an eon in blogging time) we urged our readers – particularly those of you who are in-house – to consider joining the Product Liability Advisory Council (“PLAC”). We believed then, and continue to believe, that PLAC membership helps pharmaceutical and medical device defendants litigate complex matters smarter and more efficiently, because
This breaking news post is from the non-Dechert bloggers, because it discusses a metoclopramide case.
Like the Drager case we told you about earlier, another case has held that, in the context of generic drug preemption, labeling a design defect claim a “risk/utility” or “consumer expectations” is a distinction without a difference – and
Don’t get too excited. When we say a twitch, we mean it in its smallest sense. A shudder, a tremor. One blip followed by a long flat line. We aren’t talking about resuscitation at this point. But, just maybe West Virginia hasn’t signed a DNR order quite yet.
Ever since the West Virginia Supreme Court of Appeals refused to adopt the learned intermediary doctrine in State of West Virginia ex rel. Johnson & Johnson Corp. v. Hon. Mark A Karl, 220 W. Va. 463 (W. Va. 2007), we haven’t been shy about telling you all the ways that decision simply got it wrong (see here and here). But, ever the optimists, we sift and pan through West Virginia decisions like 19th century gold miners – looking for those little nuggets we can use to breathe life back into the learned intermediary doctrine.
We got one of those nuggets back in 2010 when the West Virginia Supreme Court of Appeals decided that there is no private cause of action under the West Virginia Consumer Credit and Protection Act (“CCPA”) for prescription drugs. White v. Wyeth, 705 S.E. 2d 828 (W. Va. 2010). Nowhere in that decision will you find the words “learned intermediary.” However, what that court did say was that when a plaintiff alleges affirmative misrepresentations, he must prove reliance and because for prescription drugs “the consumer cannot and does not decide what product to purchase”, id. at 838, plaintiffs can’t establish a causal connection. If we were playing charades, we’d be making the “sounds like” gesture. The court even went so far as to say that it is the physician who must “exercise[] judgment whether or not to prescribe a particular medication.” Id. So close.Continue Reading A Twitch of Life for Learned Intermediary Doctrine in West Virginia
More and more we find ourselves at parties on Oscar night. Lately they’ve become red carpet parties. Jeez. We have no idea how that happened, but that’s where things are. There’s an upside though: the alcohol. Oh, and the snide comments. The alcohol and the snide comments make for fun. A couple of years ago, we stood watching yet another actor wrapped in suspect confidence and dazzling designer fabric standing in front of a microphone on the red carpet talking about [insert far away country] and how uninformed we are about its dire circumstances and how this actor was now going to inform us. Yummy. A guy holding a beer next to this particular DDL blogger summed things up: “Actors. What would we do without them?”
That’s pretty funny. But watch out. Lawyers may be worse. At those same parties others seem to think that you as a lawyer mysteriously have the answers to all sorts of difficult questions because your daily work-life is filled with complicated, intellectual problems that you approach in complicated, intellectual ways. But then you leave the party, go to work the next day and deal with crazy stupid stuff.
A Ninth Circuit panel seems to have faced this same feeling 11 days ago when it wrote this opening paragraph:
Some days we are called upon to consider such profound issues as eleventh-hour death penalty appeals, catastrophic threats to the environment, intense and existential questions of civil and human rights, and the most complicated, controversial problems in civil, criminal and administrative law. Today we consider the coating on sunflower seeds.
Lilly v. ConAgra Foods, Inc., 2014 U.S. App. LEXIS 3159, at *2 (9th Cir. Feb. 20, 2014).Continue Reading More Food Litigation in California: Attack of the Sunflower Seeds