We’ve been blogging now for well over seven years.  Our first substantive posts went up on November 15, 2006, and by now about 2450 have followed. We use this blog regularly as a research tool.  A lot of you probably do, too.  Even for us, it’s getting hard and harder to find what we’ve already posted.  And since we wrote (almost) all these posts, and presumably remember at least something about them, we can imagine how hard it must be for the rest of our readers.  We’ve tried with the topic tags, but they’re something of a blunt instrument, and by now some of those are getting unwieldy, with more than 300 posts on preemption, and over 100 on all of our other heavily covered categories.

We like to know where things are too.  Our clients inform us regularly that they expect us to provide them with more value for less.  One way to do that is not re-invent the wheel in researching for our billable matters.  Being able to take advantage of free – or at least non-billable – research conducted for the blog seems like an eminently reasonable step to take.  Of course, for competitive reasons, we could just do that internally and not share anything.  But then why have a blog at all?  That would run counter to our basic philosophy that defense wins anywhere help defendants everywhere.  Not all “value” has to be billed.  Nor does every defendant and every case justify the kind of research we do.  But we’re just egotistical enough to think that the defense of any case where our research is relevant could benefit from it.  So we’ve decided to share … again.

That means this is going to be a really boring post.  We’re lawyers, not librarians, but we’re going to try to organize things so that people who want to use our research posts (as opposed to our single-case posts and other stuff) can find them.  More value for less.  It’s hard to beat “free.”

Thus, if you’re looking to be entertained, come back tomorrow.  But if you’re a reader who thinks you might actually want to use the blog’s research resources, you’ll want to save this post somewhere.

Here’s how we’re going about this.

Most of our serious research has been of four types.  The first type is our scorecards.  These compile all cases that we know of, pro or con, on a topic.  Scorecards are updated on an ongoing basis, so you don’t need to worry about the date of the post.  Because we’re not in the habit of doing the other side’s research for them, scorecards only address subjects where the defense usually wins.

Next are our cheat sheets.  These address subjects where the decisional record is more mixed.  Cheat sheets only contain favorable precedent – that is, where the defense side won.  Cheat sheets are also updated on an ongoing basis, although often not as religiously as our scorecards.

On numerous occasions, we’ve discussed other topics, frequently on a nation-wide basis. Sometimes we’ve organized such research in 50-state fashion, with the headers formally divided on a state-by-state basis. We’ll keep to that division here. In our third category, we’ll list our state-by-state research topics, and fourth we’ll finish with other nationwide research organized by topic.  With these posts, we’re also including the date, so you’ll know how current the research is.  With only a few exceptions, our research other than scorecards and cheat sheets is not updated.  What you see on any given date is what you get.

SCORECARDS

Post-Riegel Pre-Market Approved Device Preemption Scorecard

Post-Mensing Generic Drug Preemption Scorecard

Innovator Liability in Generic Drug Litigation (Conte)Scorecard

Cross-Jurisdictional Class Action Tolling (of the statute of limitations) Scorecard

Lack of Compensable Injury Scorecard

CHEAT SHEETS

Post-Levine Drug/Vaccine Preemption Cheat Sheet

Class Action Denial In Federal Court Cheat Sheet

Class Action Denial In State Court Cheat Sheet

TwIqbal Cheat Sheet

FDA Adverse Event Reports Cheat Sheet

Duty to Test Cheat Sheet

E-Discovery for Defendants Cheat Sheet

Lone Pine Cheat Sheet

STATE-BY-STATE NATIONWIDE RESEARCH

Substantive Law:

Causation – Physician failure to read warnings (10/28/11) and (10/17/13)

Comment k/Unavoidably Unsafe Product – How states have applied Restatement §402A, comment k (10/8/08) and
(4/28/11)

Consumer Fraud – Extraterritoriality rejected (9/13/07)

Consumer Fraud – Recovery of damages for personal injury (4/15/11)

Duty to Recall – States rejecting duty (8/11/11)

Fraud on the Market – Cases rejecting fraud on the market causation theories outside of the federal securities law context (1/25/10)

Hospitals – Strict liability (11/16/12)

Innovator Liability (7/18/14)

Learned Intermediary Rule – Applicability to exempt pharmacists from liability (2/24/11

Learned intermediary rule – Medical device cases (7/10/08)

Learned Intermediary Rule – Who’s adopted it and who hasn’t (7/5/07 – occasionally updated), and (6/2/11)

Market Share Liability – Who has it, who doesn’t (7/15/10)

Medical Monitoring – Who has it, who doesn’t (4/15/09)

Misuse – In pari delicto defense (8/23/07)

Nuisance – Municipal cost recovery rule (5/3/07)

Preemption – Embedded fraud on the FDA claims (9/3/09)

Product Liability – Adoption of the Restatement (Third) of Torts, Products Liability §2 (9/10/10)

Punitive Damages – Adoption of one-to-one ratio in large-damage cases (8/18/11)

State of the Art Defense – Precedent applying defense in prescription drug/medical device litigation (3/20/09)

Procedural law:

Discovery – Informal physician interviews, who allows them and who doesn’t (12/18/08 – sometimes updated), and here (8/16/07)

Expert Witnesses – Whether defense experts, because defendants do not bear the burden of proof, must testify to a reasonable degree of medical certainty (8/4/2011)

Removal – Pre-service removal (10/1/09) and (5/26/11)

GENERAL NATIONWIDE RESEARCH

Substantive law:

Administrative law – Exclusion of administrative standards that are more lax than legal standards (4/8/10)

Administrative law – No private FDCA right of action (2/18/10)

Bulk Drug Suppliers – Liability (11/29/12)

Causation – Individualized reliance (9/1913)

Comment k/Unavoidably Unsafe Product  – Application to medical devices (1/12/12)

Consumer Fraud – Lack of damages (2/5/09)

Consumer Fraud – Prescription medical products not “consumer” goods (2/10/12)

Consumer Fraud – Regulatory compliance as defense (5/24/07) and (3/6/14)

Co-Promoters – Cases rejecting liability (12/7/11)

Decisions in MDL – State law decisions in out-of-state MDLs (4/25/13)

Design Defect – Alternative design requirement in medical device cases (8/8/13)

Duty to Train or Advise Physicians – Decisions rejecting (9/15/11) and (5/30/13)

Emotional Distress – Defeating emotional distress claims in drug/device litigation (2/3/11)

Experimental/Investigational Drugs – No duty to supply (3/15/12)

First Amendment – Defense to tort liability (12/14/12)

Fraud – Promotion of off-label use not fraudulent (7/27/12)

Fraud on the market – Causation (2/17/12)

Heeding presumption – Precedent rejecting presumption (7/2/09)

Informed Consent – Off-label use need not be disclosed (6/21/07) and (1/14/10) and (10/20/11)

Learned Intermediary Rule – Burden of proof when prescriber testimony nonexistent (3/10/14)

Learned Intermediary Rule – Direct to consumer exception (1/20/11)

Learned Intermediary Rule – Physician as “consumer” in consumer expectation test (5/7/12)

Learned Intermediary Rule – Policy reasons for rule (7/6/07)

Learned Intermediary Rule – Warning causation cannot be proved by “reasonable doctor” expert (4/19/07)

Medical Malpractice – Off-label use and the standard of care (11/2/12)

Medication Guides – Claims about (2/21/14)

Negligence – Duty (9/17/09)

Negligence per se – State-law defenses to FDCA-based negligence per se actions (2/7/08) and (2/12/09)

Preemption – Buckman applies to fraud on agencies other than the FDA (9/25/08)

Preemption – Failure to recall claims (9/28/12)

Preemption – FDA prosecutorial discretion (10/5/12)

Preemption – Generic drugs, various topics (4/5/12)

Preemption – HIPAA and informal defense interviews of treating physicians (2/15/07)

Preemption – OTC drugs (11/25/08)

Preemption – PMA devices where the classification has arguably changed (10/7/10)

Preemption – PMA plaintiffs can’t establish parallel FDCA violation by res ipsa loquitur (1/26/12)

Preemption – Post-Riegel parallel violation claims (6/26/08) and (12/18/08), and (7/30/09)

Preemption – Product development protocol (9/6/11)

Preemption – Transitional devices (10/31/13)

Preemption –Warnings about risks of off-label use (12/19/13)

Publisher Liability – Is a publisher of a pharmaceutical warnings, who is not a drug manufacturer, liable for substantive errors or omissions in what it publishes? (4/7/11) and (7/18/13)

Punitive Damages – Compliance as a defense (3/8/07) and (11/5/09)

Punitive Damages – No constitutional right to obtain (4/30/12)

Punitive Damages – Territoriality (12/29/06)

Punitive Damages – Warnings as a defense (2/24/12)

Recalls – Duty to recall, subsequent remedial measures and other recall-related issues (9/24/09)

Res Ipsa Loquitur – Broken medical devices are not ipso facto defective (12/31/09)

Restatement (Third) §6(c) – adoption or rejection (5/3/11)

Sales Representatives – Tort duties when present in operating room (9/23/11)

Sales Representatives – fraudulent joinder (7/14/09)

Warnings – Causation issues (5/8/08) and (10/2/08)

Warnings – Expert proof requirement in learned intermediary rule cases (6/11/09)

Warnings – No duty to warn about competing products (7/19/07)

Warnings – Overwarning (1/9/14)

Warnings – Plaintiffs can’t assert failure to warn of risks they never suffered (10/26/07) and (4/1/10)

Warranty – Application of learned intermediary rule to bar claims (11/10/11)

Procedural law:

Adverse Event Reports – rejecting their use, either as evidence or as a basis of expert testimony (6/7/07)

Bankruptcy – Judicial estoppel of plaintiff not listing tort claim as asset (9/25/12)

Class Actions – Cy pres (10/15/09)

Class Actions – punitive damages (7/17/09) and (2/26/09)

Class Actions – single issue certification (11/19/09)

Daubert – 2.0 relative risk standard for more likely than not (12/28/07)

Daubert – Differential diagnosis as faulty methodology (5/7/09)

Discovery – Counsel’s ability to speak with his/her own during an ongoing deposition (2/10/11)

Discovery – Deposing current FDA employees (5/22/14)

Discovery – Litigation holds (4/3/14)

Discovery – Lone Pine orders (8/11/08

Discovery – Protection of customer lists from discovery (4/2/09)

Discovery – Translation of non-English documents not required (7/9/08)

Erie Doctrine – Obligation to be conservative in making state-law predictions (11/28/06) and (5/13/11)

Evidence – Exclusion of animal studies (7/19/07)

Evidence – Exclusion of corporate ethics expert (7/19/07)

Evidence – Exclusion of foreign regulatory standards (8/7/07) and (6/30/11)

Evidence – Exclusion of fraud on the FDA evidence (7/19/07)

Evidence – Exclusion of FDA warning letters (4/21/10)

Evidence – FDA §510k clearance (7/5/12)

Evidence – Warning changes as subsequent remedial measures(2/2/10)

Expert Witnesses – Legal conclusions are inadmissible (2/9/08) and (3/14/08)

Expert Witnesses – Postmortem redistribution (4/18/12)

Expert Witnesses – Suzanne Parisian (8/9/12) and (8/14/13)

Expert Witnesses – Testimony on corporate intent, ethics, and similar subjects is inadmissible(5/19/2011)

Joinder – Misjoinder (1/7/10)

Judicial Notice – FDA-related materials (9/20/07) and (4/17/08) and (7/2/09)

Pleading – Moving to dismiss MDL master complaints (8/20/09)

Pleading – Allegations barred by TwIqbal (12/2/11)

Pleading – TwIqbal and fraudulent joinder (6/15/12) and (7/9/12) and (4/19/13)

Pleading – TwIqbal barring “and/or” pleading (7/23/09)

Pleading – TwIqbal barring “otherwise negligent” pleading (11/23/12)

Pleading – TwIqbal in cases removed to federal court (11/18/10)

Pleading – TwIqbal in PMA preemption cases (12/9/10)

Pleading – TwIqbal in product liability cases generally (8/6/09)

Pleading – TwIqbal in state court (10/29/09)

Pleading – Various TwIqbal issues (5/16/12)

Removal – “Order or other paper” (3/22/13)

Removal – Several removal issues (10/1/09)

Standing – No private FDCA cause of action (6/7/12)

Trial – consolidated multi-plaintiff trials (12/16/11)