March 2023

Agree To Disagree – Don’t Sue the Other Side of a Scientific Dispute into Silence

By Bexis on March 31, 2023

Time and time again, we have opposed efforts by one side of a scientific dispute – typically involving a prescription medical product – to attempt to sue the other side of that dispute into silence. We came to that position through the crucible of litigation, since plaintiffs in the Bone Screw litigation sought to sue a variety of medical societies because they supported the (at the time) off-label use of bone screws for pedicle fixation. We have tried to be consistent.Continue Reading Agree To Disagree – Don’t Sue the Other Side of a Scientific Dispute into Silence

Not An Early April Fools’ Day Joke: State Still Pushes Its Dumb Ivermectin Law

By Eric Alexander on March 30, 2023

About two months ago, we marveled at the notion that challenges to facially neutral state and local government vaccine requirements were still percolating through the legal system. We probably should not have been surprised by the persistence of frivolous litigation. After all, our day job entails defending litigations that can last years longer than they…

M.D. Florida Rejects Plaintiff’s Motion to Seal Medical Records

By Stephen McConnell on March 29, 2023

Hey, come closer. We’ve got a secret to share with you. We’ll whisper it in your ear. Ready? Courts hate sealing filings. It’s an administrative pain. Plus, parties who claim confidentiality tend to be a bit promiscuous in that regard, labeling far more documents confidential than is warranted. We’ve been on both sides of confidentiality…

Context Is King — At Least for Labeling Cases in New York

By Michelle Yeary on March 28, 2023

We know the real quote attributable to Bill Gates is “content is king,” But as communications continue to become shorter and more compressed, context can get lost in the shuffle; and context as much as content, drives our knowledge and interactions. So, when the court in Henry v. Nissin Foods (U.S.A.) Co., opined that…

What Are the “Usual Stipulations” for Discovery Depositions, Anyway?

By Bexis on March 27, 2023

We read a couple of recent articles in the local Philadelphia legal press questioning whether lawyers participating in depositions really had any idea what the “usual stipulations” for their depositions even were. Between the two articles, they cited three cases. The issue also prompted some discussion among us bloggers, with one of us commenting that, “for decades,” he has rejected reference to “usual stipulations” in depositions, in favor of the phrase “applicable rules and orders.”Continue Reading What Are the “Usual Stipulations” for Discovery Depositions, Anyway?

California Court Affirms Preemption Of Prop 65 Claims For OTC Drugs

By Steven Boranian on March 24, 2023

We reported nearly two years ago on a California trial court that dismissed claims against generic over-the-counter drug manufacturers under California’s notorious Proposition 65, on the basis that federal law preempted those claims. You can read that post here, and you will see that we said at the end that an appeal was likely. …

Pelvic Mesh Remand Case Fizzles Out Again

By Eric Alexander on March 23, 2023

Stop us if you have heard us say “stop us if you have heard this before.” Pelvic mesh cases on remand have often faced the harsh realities of procedural requirements and burdens of proof because transferee judges have treated them like individual cases rather than items in an inventory. Decisions about the impact of failure…

Pacemaker Claims Melt Away in Arizona Desert

By Stephen McConnell on March 22, 2023

We made our annual pilgrimage to the Arizona Cactus League last week. As we’ve done for the past 20-plus years, we rendered homage to our favorite sport, baseball, and, more importantly, to our sisters, one of whom lives quite close to the San Diego Padres Spring Training field in Peoria, AZ, and the other of…

Western District of New York Gives Plaintiff Fourth Try to Plead Her Claims

By Michelle Yeary on March 21, 2023

Second chances, sure. Two bites at the apple, we see it all the time. Three strikes before you are out, fairly common. But a fourth amended complaint to cure basic pleading deficiencies? That seems overly generous by any standards. Well, almost any standards because that is what plaintiff got in Greenwood v. Arthrex, Inc.…

Defective Claims for “Defective Product”

By Bexis on March 20, 2023

At some point, early in the pelvic mesh litigation, some genius on the other side decided it would be a good idea to include a stand-alone claim for “defective product” in at least one of the plaintiffs’ standard complaints. “Defective product” was pleaded as some generic form of strict liability, separate and apart from the three accepted theories of manufacturing, design, and warning defect. We have no idea where this concept of “defective product” came from. It’s not adopted by the law of any state as far as we can tell.Continue Reading Defective Claims for “Defective Product”

Drug & Device Law