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Happy New Year!

It’s been 3 ½ years since we last updated our index to our online research resources.  That’s almost ⅓ of the total life of the blog, which started in way back in 2006.  We’ve been blogging now for well over ten years.  Our first substantive research post, on the presumption against preemption, was published that November.  We are now up to over 3400 separate posts of greater or lesser import.

We use this blog regularly as a research tool, and we regularly pass posts along to others in our firms when they ask. We suspect that a lot of you do, too.  Even for us, it becomes progressively more difficult to find what we’ve already posted – particularly when we want to do it quickly.  Given that we’re the authors of (almost) all these posts, and presumably we remember at least something about them, we can only guess how difficult accessing our posts must be for the rest of our readers.  We’ve tried with categories and tags, describing the topics, but not only are they less than 100% accurate, but they’re less than 100% consistent, since each member of the blogging team treats them a little differently.  Beyond that, some of our more heavily used topics, like preemption with nearly 500 posts, are quite unwieldy to sort through.  We’d guess that over half of all of our categories have over 100 posts.

We like to know where things are too.  One of the many reasons we write the blog is to provide our clients with more value for less.  The ripple effects, of course, go beyond our clients to the industry as a whole and the defense community as a whole.  But if another law firm saves a mutual client X dollars by using one of our posts to get a leg up on a research topic, we still think we’re providing extra value, even if indirectly.  In order to do that, we can’t be re-inventing the wheel, any more than in our billable matters.  Using free – or at least non-billable – blog research seems like an eminently reasonable step for any of us to take.

The alternative would be to keep things internal and not share.  But then why blog at all?  Our basic philosophy that defense wins anywhere help defendants everywhere – whether that win is in Philadelphia or Poughkeepsie, Los Angeles or Laramie, D.C. or Des Moines.  Value is value, whether billed to a client or not.  We are acutely aware that not every defendant and not every case can independently justify the depth of research we do.  But we are egotistical enough to think our research could be beneficial to the defense of just about any case.  So we’ve decided to share … again.

What follows is 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.  For “value,” it is hard to beat “free.”

So, if you’re looking to be entertained, come back tomorrow.  But if you’re a defendant or a defense lawyer who might actually want to use the blog’s research resources, you’ll want to save this post somewhere.

Here’s how we go about this.

Our serious research is of four overall types.  First, are our scorecards.  These compile all cases that we know of, pro or con, on a topic.  Scorecards are updated on an ongoing basis, so the date of the post is not particularly important.  Keep in mind, that, because we’re not in the business of doing the other side’s research for them, scorecards only address subjects where historically the defense usually wins.  That’s why we had to retire our prescription drug preemption scorecard after Wyeth v. Levine, 555 U.S. 555 (2009).

Second, are our cheat sheets.  These address subjects where the weight of precedent 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.  When using cheat sheets, always be aware that adverse precedent exists, but is not listed in the cheat sheet.

On numerous occasions, we’ve either 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.  So, third, we’ll list our state-by-state research topics.

Fourth, and finally, we’ll follow that with our remaining nationwide research organized by topic.  We’re also including the date of the post, so you’ll know how current the research is, because with only a few exceptions, our research posts other than scorecards and cheat sheets is not updated.


Post-Riegel Pre-Market Approved Device Preemption Scorecard

Post-Mensing Generic Drug Preemption Scorecard

Innovator Liability in Generic Drug Cases Scorecard

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

Lack of Compensable Injury Scorecard


Post-Bauman Personal Jurisdiction Cheat Sheet (updated through BMS)

Post-BMS Personal Jurisdiction Cheat Sheet

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


Substantive Law:

Causation – Heeding presumption (11/7/14)

Causation – Physician failure to read warnings (10/28/11) and (10/17/13) – this second one is updated

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

Comment k/Unavoidably Unsafe Product – Non-implanted medical devices (8/4/17)

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

Consumer Fraud – Learned intermediary rule (10/10/16)

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

Duty – Corporate credo (11/18/16)

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) (updated)

Innovator Liability – Analogous bare metal defense (1/8/15)

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

Learned Intermediary Rule − Consumer fraud (10/10/16)

Learned Intermediary Rule – Financial ties as purported exception (8/3/17)

Learned Intermediary Rule – Medical device cases (7/10/08)

Learned Intermediary Rule – States adopting it by level of court (7/5/07 – occasionally updated), and again (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)

Punitive Damages – How much increase in risk is necessary (11/9/15)

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 (8/4/11)

Personal Jurisdiction – Jurisdiction through registration to do business (12/18/17)

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


Substantive law:

3D Printing (2/5/15)

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)

Artificial Intelligence (7/24/17)

Biomaterials Access Act (8/19/16)

Bulk Suppliers – Liability (11/29/12)

Causation – Duty to Report (9/19/16)

Causation – Increased risk/lost chance (11/30/15)

Causation – Individualized reliance (9/19/13)

Causation – Plaintiff conduct (9/18/17)

Causation – “Regulatory causation” (1/19/17)

Causation – Risks plaintiff never suffered (4/24/17)

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

Comment k/Unavoidably Unsafe Product – PMA devices (11/30/17)

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

Consumer Fraud – Prescription medical products not “consumer” goods (2/10/12), and again (6/25/15)

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

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

Damages – Phantom damages (discounted medical bills) (10/9/14)

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), and again (12/12/17)

Design Defect – Manufacturing defect comparison (6/30/16)

Design Defect – Pre-approval design defect (5/8/17)

Distributors – Limits to liability (2/10/15)

Duty to Report − Causation (9/19/16)

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

Duty to Update Claims (9/12/16)

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

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

FDA – Warning letters lack force of law (9/3/15)

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

First Amendment – Off-label promotion (1/13/16), and again (1/15/16)

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

Fraud On The Market – Causation (2/17/12)

Heeding Presumption – New York law (10/8/15)

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

Homeopathic Products (8/11/15)

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

Junk Faxes (7/29/15)

Learned Intermediary Rule – Adoption (3/3/16)

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

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

Learned Intermediary Rule – Non-physicians as intermediaries (2/20/17)

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)

Medicare Secondary Payer – Recovery from attorneys (1/16/17)

Medical Malpractice – Off-label use and the standard of care (11/2/12), and again (2/13/17)

Medical Malpractice – Standard of care (12/12/17)

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 again (2/12/09)

Negligent Design – Alternative design requirement (2/27/17)

Off-Label Use – State authority to regulate (1/27/17)

Pharmacogenomics (5/26/15)

Preemption – 510(k) preemption post-Lohr (9/24/15), and again (4/22/16), and yet again (8/22/16), and once again (10/30/17)

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

Preemption – Design defects in branded drugs (1/1/16), and again (8/18/17)

Preemption – Failure to contraindicate claims (6/26/17)

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

Preemption – First Amendment (8/27/15), and again (12/9/15)

Preemption – Fraudulent concealment in PMA context (11/29/17)

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 – Injunction against selling FDA-approved product (2/9/16)

Preemption – OTC/monograph drugs (11/25/08), and again (12/12/16)

Preemption – Off-label warnings (12/19/13), and again (3/20/17), and yet again (9/20/17)

Preemption – Peer review material discovery (11/5/15)

Preemption – PMA devices and good manufacturing practices (9/14/14)

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 – Branded drug impossibility preemption post-Levine – non-NDA-holder, boxed warnings, major changes, failure to recall (8/22/14), and again (8/13/15)

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

Preemption – Presumption against preemption (11/15/06), and again (10/30/17)

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

Preemption – Question of law (3/28/17)

Preemption – Transitional devices (10/31/13)

Product Liability – Definition (2/16/17)

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 again (7/18/13)

Punitive Damages – Compliance as a defense (3/8/07), and again (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 – Duties when present in operating room (9/23/11)

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

Warnings – Boxed warnings as adequate as a matter of law (7/10/17)

Warnings – Causation issues (5/8/08), and again (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 again (4/1/10), and yet again (4/24/17)

Warnings – Statistics (11/13/14)

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)

Attorney/Client Privilege – Ex employees (11/28/16)

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

Class Actions – Ascertainability (1/23/15)

Class Actions – Cross jurisdictional statute of limitations tolling (3/22/07)

Class Actions – Cy pres (10/15/09)

Class Actions – Personal jurisdiction (11/20/17)

Class Actions – Punitive damages (7/17/09), and again (2/26/09)

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

Courts – Conflict in precedents (4/12/17)

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

Discovery – Cost sharing (5/15/17)

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 (5/22/13)

Discovery – Litigation holds (4/3/14)

Discovery – Lone Pine orders (8/11/08)

Discovery – Predictive coding/technology assisted review of documents (3/24/16)

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

Discovery – Scope after 2015 rules amendments (4/25/16)

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 again (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 again (6/30/11)

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

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

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

Evidence – Sham affidavits (9/25/17)

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

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

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

Expert Witnesses – Suzanne Parisian (8/9/12) and again (8/14/13), and yet again (3/30/17)

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

Expert Witnesses – Videotaping expert product examinations (4/2/15)

Joinder – Misjoinder (1/7/10)

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

Multidistrict Litigation – Direct filing (10/16/17)

Personal Jurisdiction − Class actions – (11/20/17)

Personal Jurisdiction – Consent by registering to do business (3/5/15)

Personal Jurisdiction – Dormant commerce clause (7/5/16)

Personal Jurisdiction – Litigation tourism (10/20/17)

Personal Jurisdiction – Third-party subpoenae (6/23/16)

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

Pleading – TwIqbal − “And/or” pleading (7/23/09)

Pleading – TwIqbal − Fraudulent joinder (6/15/12), and again (7/9/12), and yet again (4/19/13)

Pleading –TwIqbal − Generally (12/2/11)

Pleading – TwIqbal − “Otherwise negligent” pleading (11/23/12)

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

Pleading – TwIqbal − Product liability cases generally (8/6/09)

Pleading – TwIqbal − Removal to federal court (11/18/10)

Pleading – TwIqbal − State court (10/29/09)

Pleading –TwIqbal – Various dismissal grounds (5/16/12)

Removal – Bad faith and fraudulent joinder (7/18/16)

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

Removal – Various removal issues (misjoinder, TwIqbal, consent) (10/1/09)

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

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

Trial – Gag orders (6/28/16)

Wikipedia (1/23/17)