In 2020, many things are the same, yet different, and industry conferences are just one example. As in-person events (or in-person anything, for that matter) have been relegated to the sidelines, we have seen the emergence of the virtual conference, which replicates most aspects of the in-person conference, with the added benefit that there is
Earlier this year we discussed the application of Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), to a variety of private litigation that sought to second-guess the FDA’s drug or medical device classification decisions. Then we followed up with what we described as a “doozy” of a case along the same lines,
The decision in In re Bard IVC Filters Products Liability Litigation, 969 F.3d 1067 (9th Cir. 2020) (“Booker”), is yet another reminder that multidistrict litigation as it is currently conducted is a fundamentally flawed process, dedicated more to forcing settlements than to any of the goals envisioned by Congress when it passed
Uncertainty plagues American litigation and accounts for the frequent analogy to a lottery. The same case tried before two different juries will produce two very different results. Within the same jurisdiction, a plaintiff might ring the bell this week, but get zeroed out the next. Factor in different jurisdictions, and the possibilities will wander all
We have expressed our opinion on “failure to update” claims and have not hidden that we don’t think much of them. Failure to update claims were manufactured by plaintiffs in response to PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) and Mutual Pharm. Co. v. Bartlett, 570 U.S. 472 (2013) which basically
It’s not unusual for us to disagree with a decision from a state’s highest court. Indeed, we did so vehemently not long ago with a decision by the Pennsylvania Supreme Court. But even when we disagree, we rarely encounter decisions that make us cringe as much as Russell v. Johnson & Johnson, ___ S.W.3d
As we write this, there is great uncertainty in the country. The intersection of state and federal law is a focus, as is the possibility that one or more of the many recent challenges to how states count votes for the presidential election will end up in the Supreme Court. The tension is palpable, in
The hip implant litigation, Rouviere v. DePuy, has already given us one of the classic opinions on the COVID-19 “new normal” in litigation practices. See Rouviere v. DePuy Orthopaedics, Inc., ___ F. Supp.3d ___, 2020 WL 3967665 (S.D.N.Y. July 11, 2020) (blogged about here). That decision was prompted largely by the plaintiff’s
Two weeks ago we wrote about a pelvic mesh case that crumbled on remand due to the plaintiff’s failure to depose the implanting physician. The importance of the implanting physician is self-evident. Because the plaintiff bears the burden of proving the elements of torts, including whether a different warning would have prompted the implanter to
This blogger’s work from home experience has included a lot of time with two teenagers. Granted, two relatively smart, funny, and generally OK to be around teenagers. But teenagers, nonetheless. So, I’ve been witness to some true common senseless moments. Like twenty minutes of trying to start the lawnmower before checking if it had gas.