Ever since the FDA decided that discretion was the better part of valor – or read the handwriting on the wall – and decided not to appeal United States v. Caronia, 703 F.3d 149 (2d Cir. 2012), to the United States Supreme Court, we’ve been wondering where the next First Amendment opportunity is going
You’ve no doubt heard that hard cases make bad law. But sometimes hard cases make no law. That is, the judge decides not to decide, because deciding seems too difficult. We would have thought that ‘deciding stuff’ would have been way up there in the job description of judges, certainly above “managing litigation,” strong-arming settlements,
We don’t normally follow Freedom of Information Act (“FOIA”) decisions, but Public Citizen v. U.S. Dep’t of Health and Human Services, ___ F. Supp.2d ___, 2014 WL 4388062 (D.D.C. Sept. 5, 2014), falls more or less in our sweet spot. Back in 2009, Public Citizen, an ostensible “public interest” group that regularly acts as
From our ivory tower in the kingdom of blogdom, we track cases and litigations from afar, peeking in on them from decisions rendered at specific points in time. Sometimes, from a single decision, we venture on what will happen next, like whether claims that survived dismissal will make it past summary judgment or whether a
Yesterday the Third Circuit upheld a District of New Jersey decision denying class certification as to plaintiffs’ consumer fraud and unjust enrichment claims. Grandalski v. Quest Diagnostics Inc., 2014 U.S. App. LEXIS 17543 (3d. Cir. Sep. 11, 2014).
Plaintiffs alleged that Quest had overbilled them for testing services and their complaint proposed multiple nationwide
The Eleventh Circuit’s recent decision in In re Engle Cases, ___ F.3d ___, 2014 WL 4435893 (11th Cir. Sept 10, 2014), although involving cigarettes rather than prescription medical products, rips the scab off shoddy practices that plague many mass torts and are inherent in the other side’s solicitation-based approach to such litigation. Basically, the
We do not devote a lot of space to statute of limitations cases. That is not because they are unimportant. To the contrary, statutes of limitations serve fundamental principles of fairness and predictability. Parties should not have to worry about litigations springing up well after the operative events occurred, and well after witnesses, or their memories, have departed. But statutes of limitations are inherently fact- and jurisdiction-specific. Thus, it is not always easy to tease some principle of general applicability and interest out of those cases.
But you just know that we’re about to tease such a principle out of a statute of limitations case, don’t you? In most tardily-filed cases, we are greeted by an assertion that the discovery rule should come to the rescue because the defendant hid the truth, polluted the information environment, and prevented the plaintiff from filing earlier – that is, within the statute of limitations. That argument is almost always unadulterated hogwash. A federal judge in California recently did a thorough and elegant job of demolishing that argument. We could not resist sharing it with you.
In Plumlee v. Pfizer, Inc., 2014 U.S. Dist. LEXIS 121634 (N.D. Cal. August 29, 2014), the plaintiff brought a class action alleging that Zoloft did not work for her, and she wanted her money back. That’s only a slight oversimplification of the case. Various California statutes – the usual suspects — were invoked. This case, to our cynical noses, smells like an effort to concoct a no-injury class action that would do more good for the attorneys than the litigants. No matter. It was filed too late. The plaintiff last purchased Zoloft or its generic equivalent in June 2008. She filed her class action lawsuit on January 30, 2013, which is four years and seven months after her claims accrued. The longest applicable statute of limitations was four years. The math is simple, and the math means that all of her claims are time barred.
How to get around that pesky statute of limitations? The plaintiff said that she did not discovery the defendant’s alleged misrepresentations and omissions regarding Zoloft’s efficacy until on or about May 22, 2012, when she watched a 60 Minutes segment regarding the placebo effect and depression. Before that, the plaintiff dwelled in ignorance, as she “did not see any media, journal articles, press releases, websites, letters, or statements concerning Zoloft and its ability to outperform placebo in treating depression.” Plumlee, 2014 U.S. Dist. LEXIS 121634 at *11. The problem for the plaintiff is that the delayed discovery rule benefits only plaintiffs who can show that they acted reasonably and diligently in preserving their rights. The court had dismissed the original complaint in this case, but granted leave to amend, insisting that the plaintiff show her diligence. Did she manage to do that? She did not.Continue Reading Later is not Better than Never
We’ve blogged a number of times about the illogical, and often downright counterproductive, nature of the FDA’s position that regulated manufacturers are generally banned from providing the medical community (or the public) with truthful information about the off-label uses of their products. Even information about the risks of off-label uses cannot be included on a
This post is from the non-Reed Smith side of the blog only.
Even on a slow week, we can count on one litigation to infuse our inbox with blogging opportunities. The decision comes from a federal court in Arizona, the birthplace of Stengel, so it’s not the type of infusion we’d prefer. But this
Is a product defective because it did not perform as hoped? How about if it failed or even if it broke? Of course not, and this is doubly true for implanted medical devices because all treatment with medical devices carries risk, including the risk of poor outcomes. You therefore can’t say an implanted medical device