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If you share your life with a dog, you know the drill. You call them by a hundred names. You talk to them like they understand every word (they might). You make decisions about their health with the same care — maybe more — than you would for yourself. So when a dog gets hurt after a medication, the instinct to find someone responsible is entirely human. We get it. But instinct is not a lawsuit. And a lawsuit, to survive, needs facts. Specific facts. Not just vibes, not just “the marketing was misleading,” and certainly not four rounds of amended complaints that keep making the same mistakes.

That brings us to Hartney v. Zoetis, Inc., 2026 WL 2104027 (D.N.J. Jul. 22, 2026), a putative consumer fraud and product liability class action against the manufacturer of a drug for canine osteoarthritis pain. After the fourth amended complaint, the court dismissed the case with prejudice. Four swings. Four misses. Game over.

The drug is a monthly injectable approved by the FDA in May 2023. Id. at *1. Eight named plaintiffs from across the country — Florida, Illinois, Texas, California, Missouri, Virginia, and New Jersey — brought claims on behalf of a nationwide class, alleging that the manufacturer misrepresented the drug’s safety, failed to warn veterinarians and pet owners about severe adverse events, and breached various statutory and common-law duties. Id. The plaintiffs’ stories are genuinely difficult. One dog was euthanized. Others suffered neurological symptoms, lameness, and organ problems. Id. at *2-3. We do not minimize any of that. But heartbreaking facts do not substitute for pleading facts, and pleading facts is exactly what these plaintiffs could not do.

Before getting to the merits, the court had to work through choice-of-law issues for both the consumer fraud and product liability claims. The outcome on choice of law alone eliminated most of the plaintiffs’ claims. On the consumer fraud side, plaintiffs tried to apply the New Jersey Consumer Fraud Act (NJCFA) to all class members. The court rejected that quickly. Applying New Jersey’s “most significant relationship” test, the court found that the relevant factors — where plaintiffs received and relied on the alleged misrepresentations, where their dogs received injections, and plaintiffs’ own domicile and residence — all pointed to plaintiffs’ home states outweighing that defendant was headquartered in New Jersey. Id. at *5-6. Therefore, only the New Jersey plaintiff could bring an NJCFA claim. Everyone else was out on Count 1 right there.

The product liability choice-of-law analysis ran the same way. Injuries happened in plaintiffs’ home states. Their veterinarians were in their home states. The fact that the defendant is headquartered in New Jersey is a “tenuous” connection that does not change the analysis. Id. at *9. So only the New Jersey plaintiff could proceed under the New Jersey Products Liability Act (“NJPLA”).

For the consumer protection claims, brought under the consumer fraud statutes of New Jersey, California, Illinois, Missouri, Texas, and Virginia, the court found that plaintiffs failed to adequately plead causation or reliance. The court put it plainly. The fourth amended complaint “sets forth generic assertions that fail to identify specific representations that were relied upon by their veterinarians or the named Plaintiffs.” Id. at *7. Plaintiffs did not allege what representations their veterinarians relied upon. They did not allege that they actually read the label. And critically, “other than generally alleging that Defendant’s marketing campaign was misleading, Plaintiffs do not allege that they viewed any marketing statements or materials that informed their decision to consent to [ ] injections for their dogs.” Id.

This is important. What plaintiffs saw, what their veterinarians told them, what materials were reviewed before the decision to use the drug — all of that is information entirely within plaintiffs’ control. It does not require defendant’s internal documents. It does not require discovery. Each plaintiff knows what happened at their own vet’s office. Each plaintiff knows what they read or did not read. These are facts that plaintiffs could have provided from day one. The failure to do so — even on the fourth try — is not a gap that could be cured with more time or more discovery. It is a fundamental pleading deficiency that goes to the heart of whether these claims can exist at all. Dismissal is not just appropriate here. It is required.

The court also addressed Rule 9(b)’s heightened pleading standard for fraud, finding that plaintiffs failed to allege “the who, what, where, and when of Defendant’s purported misrepresentations.” Id. The court held that plaintiffs cannot satisfy Rule 9 simply by referencing a representation on a website or in a campaign without alleging when and whether they were ever actually exposed to it. Id.

And then there is puffery. To the extent plaintiffs relied on the manufacturer’s “More Days of Play” marketing campaign, the court found that statements about helping dogs “move and play” and “improve overall quality of life” are classic puffery — broad, vague, commendatory language that no reasonable consumer could treat as a specific factual representation. Id. at *7-8. Puffery is not actionable under any of the consumer protection statutes at issue. Id. at *8.

For the New Jersey plaintiff specifically, the court addressed the NJPLA. Under New Jersey law, the NJPLA is the “sole basis of relief” for consumers injured by a defective product. Id. at *9. That means the New Jersey plaintiff’s NJCFA claim, negligence claim, and breach of implied warranty claim were all subsumed by the NJPLA. The plaintiff tried to dress up her failure-to-warn theories in consumer fraud clothing, but the court saw through it. The allegations were plainly about a defective product and inadequate warnings, which is product liability, full stop. Id. at *10.

On design defect, the court applied the well-established requirement that a plaintiff must allege the existence of a practical and feasible alternative design. Plaintiff offered nothing more than a conclusory allegation that “upon information and belief, safer, feasible, and practical alternative treatments for canine osteoarthritis pain were available.” Id. at *11. That is not enough. It was not enough the first time. It was not enough the fourth time. Plaintiffs apparently tried to correct this deficiency in their opposition briefs, but as the court reminded them, a complaint cannot be amended by a brief in response to a motion to dismiss. Id.

On failure to warn, the court took a sensible path. Rather than wading into the learned intermediary doctrine question — which the court noted is typically fact-bound and not resolved on a motion to dismiss — it decided the claim on warning adequacy. Id. at *11-12. The NJPLA provides that an FDA-approved warning label carries a rebuttable presumption of adequacy. Id. at *12 (citing N.J. Stat. Ann. § 2A:58C-4). Plaintiffs argued that adverse event reports and the January 2025 label change were enough to overcome the presumption. The court disagreed. The adverse event reports were publicly available. There was no deliberate concealment, no nondisclosure, nothing to rebut the presumption. Id. Therefore, failure to warn was dismissed.

One additional point worth highlighting. The court also addressed New Jersey’s direct-to-consumer (DTC) exception to the learned intermediary doctrine. Even setting aside whether the doctrine applied, plaintiffs could not invoke the DTC exception because — consistent with the Rule 9 and reliance failures above — they never actually alleged that they viewed any of the DTC marketing materials that supposedly informed their decision. Id. at *12 n.7. If you want to invoke the DTC exception, you have to allege you saw the DTC advertising. No allegation, no exception.

The court’s dismissal was with prejudice.  Plaintiffs tried to state a claim four times. The court had already dismissed without prejudice once. The fourth amended complaint did not meaningfully cure the pleading deficiencies. The differences between the third and fourth amended complaints, did “not suggest that Plaintiffs are progressing in the direction of an actionable claim.” Id. at *12. A fifth amendment would be futile.

Dog trainers say: you can teach an old dog new tricks, but only if the dog is willing to learn. Four amended complaints without curing the same basic pleading failures — the who, what, when, and where of specific misrepresentations; an actual alternative design; a rebuttal to the FDA’s presumption of adequacy — suggests these plaintiffs were not learning. Or perhaps the lesson is simpler — if you want to bring a case about what a plaintiff saw and relied on, you had better be prepared to say what that was. That information belongs to the plaintiff. It was available from day one. After four tries, the court ran out of patience. So did we.

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We first learned of the Washington Legal Foundations (“WLF”) back in the 1990s, when Bexis collaborated with WLF in pursuing what was then viewed as a rather radical proposition – that the First Amendment applied to FDA and other governmental constraints on off-label promotion of FDA regulated products.  Eventually, the Supreme Court specifically held that the First Amendment protects pharmaceutical promotion.  Sorrell v. IMS Health Inc., 564 U.S. 552, 557 (2011) (“Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment.”).

So, when the WLF opines on the First Amendment and product liability litigation, we listen.

Recently, we listened, and now we heartily recommend the new WLF working paper, “Public Nuisance & the First Amendment: Free-Speech Defenses to an Expanding Tort,” written by WLF’s General Counsel, Cory Andrews.  For many of the same reasons that the First Amendment protects truthful off-label speech, it also protects against governmental “public nuisance” claims that target the speech of product manufacturers.

In the past two decades, private plaintiffs and state-and-local governments began claiming that a manufacturer creates a public nuisance not only by making or selling a lawful product (bad enough), but by speaking about it − through advertising, sales representatives, scientific communications, and even policy advocacy − in ways said to encourage harmful use or play down risk.  With billions of dollars and nationwide policy in the balance, that move puts public nuisance on a collision course with the First Amendment.

Public Nuisance & the First Amendment (at probably the first page).

With ample citations to product liability-related precedent and restatement comments, the WLF article makes the following points:

  • Public nuisance claims challenging “product advertisements,” “a company’s scientific or policy advocacy,” and the “algorithmic design” of “social-media platforms” are all “inseparable from . . . speech.”
  • These public nuisance claims all “recharacterize[] protected expression as conduct the law may freely abate, simply by calling it a ‘nuisance.’”
  • Applicable First Amendment principles include: “the commercial-speech doctrine, the rule against compelled speech, the right to petition, the protection of editorial judgment, and the bedrock prohibition on prior restraints.”
  • These broad, non-traditional public nuisance claims are “without an established and recognized standard.”
  • “[P]ublic nuisance is not a roving commission to redress every social ill,” or a substitute for product-liability law, consumer-protection statutes, or [] regulatory regimes.”
  • Numerous examples of public nuisance attacks on speech, with “[e]ach iteration mak[ing] the same essential claim,“ that the purported nuisance is “how the defendant spoke about − or encouraged the use of − its lawful product.”
  • Supreme Court authority that governments may not use public nuisance to “abate speech.”
  • The “singular remedy” of public nuisance − “an injunction abating the offending activity—becomes a prior restraint the instant the activity is speech.”
  • Public nuisance claims are inherently “content”/”topic” and “speaker” based, and thus “presumptively invalid” so that “a jury verdict keyed to the content of a company’s speech is a content-based penalty by another name.”
  • “Promotion-based nuisance claims” necessarily target protected speech:  “sales promotions,” “scientific or policy statements,” and “contested positions” on public issues.
  • “Selectivity” – the targeting of manufacturers rather than other speakers” “is the tell.”  “What separates the defendant is not a different act but a disfavored identity.”
  • “The burden . . . is direct, not incidental; imposing damages for truthful promotion is not regulating inert behavior but penalizing expression.”
  • “To punish the manner of the speaking is to punish the speech.”
  • Post-hoc allegations that a manufacturer’s speech “‘unreasonably’ interfered with the public welfare” is both “ad hoc balancing” and “standardless,” in violation of the First Amendment.
  • “Product marketing, scientific debate, or advocacy” by commercial entities is “fully protected speech” not subject to mere “intermediate scrutiny.”
  • “Calling speech a ‘product,’ a ‘marketing practice,’ or a ‘nuisance’ does not” affect its First Amendment protection.
  • Public nuisance liability for mere silence makes no sense, and amounts to unconstitutional “compelled speech.”
  • “A disclosure that takes sides in a genuine scientific or policy debate is not uncontroversial and thus may not be forced.”
  • Another part of the First Amendment, the petitioning clause, prohibits public nuisance liability for a “defendant’s dealings with government itself.”
  • A detailed discussion of statutory and judicial precedents barring or restricting public nuisance claims.
  • While some speech is “commercial,” public nuisance claims “rarely stop “there,” so that the Bolger principle that full First Amendment protection applies to hybrid speech should apply.
  • Four states have presciently precluded product-based public nuisance by statute.

We wholeheartedly agree with WLF that the First Amendment should be raised and pursued as a defense to just about all product-based public nuisance claims.  Defense counsel should read the entire article, and act accordingly.

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The order certifying a class of third-party payors in the long-running Avandia MDL was the wrong result for the wrong reasons, and the Third Circuit has now vacated that order in an opinion that is well worth the read.  In In Re: Avandia Marketing, Sales Practices and Products Liability Litigation, No. 25-2278, 2026 WL 2093904 (3d Cir. July 21, 2026) (to be published in F.4th), the Third Circuit held that the district court erred in ruling that common issues predominated over individual issues on the key issue that has undone the vast majority of pharma-related class actions—causation/reliance. 

For anyone who hasn’t been following along, the FDA approved Avandia to treat Type II diabetes in 1999, and the MDL got going in 2007, after a widely publicized, but ultimately disproven meta-analysis purported to show an increased risk of heart attacks.  That was almost 20 years ago.  In that time, the FDA required a black-box warning and a REMS program, but then determined that neither was justified because there really was no increased risk.  An MDL for a cardiac risk that never actually existed.

All that is left in the MDL is a third-party payor class action, where health plans allege that they paid for more Avandia prescriptions because the manufacturer fraudulently misrepresented Avandia’s cardiac risks—not because the medication increased cardiac risk (the original, bogus theory that the FDA repudiated), but because it supposedly did not reduce that risk.  Causation is the Achilles heel for third-party payor class actions, and it should have been here, too.  The district court, however, ruled that the plaintiff payors could prove causation on a class-wide basis and certified a nationwide class.  We gave you our dim view of that order here, and the order came in as our fifth worst drug and device decision of 2025.

We knew where the Third Circuit was headed when we read the opinion’s first sentences:

We do not presume in law that x caused y merely because x happened first.  The connection might be causal.  But it might be coincidental.  Or some z might be responsible for x and y alike.  As statisticians emphasize, correlation alone does not prove causation.

In re Avandia, at *1.  Correlation alone does not prove causation.  We have heard it time and time again, and the Third Circuit made it the centerpiece of its opinion.  The plaintiffs’ RICO causation theory was that the defendant’s alleged fraud caused physicians to rely on misrepresentations in prescribing decisions, which caused TPPs to pay for prescriptions they wouldn’t otherwise have reimbursed. The plaintiffs thus needed to show that physicians’ reliance could be proved on a class-wide basis.

On this score, the district court got it wrong.  First, the district court ruled that evidence of “a common scheme to deceive” justified an inference of class-wide reliance.  The Third Circuit, however, rejected that:  “[O]ur cases do not support a broad, uniform rule that courts may infer class-wide reliance any time plaintiffs propose to prove the defendant committed fraud. . . . [And] we have also warned, in a case where the proof of the violation came from common evidence of a common scheme, that ‘reliance is nearly always an individualized question.’”  Id. at *12.  Moreover, “there is no fraud exception” in proving predominance, and a court should not “relax its certification analysis.”  Id.  Here, dozens of factors bear on a physician’s prescribing choices, and the Third Circuit faulted the district court for unjustifiably oversimplifying those decisions.  The court pointedly noted that the district court’s “portrayal of prescribers’ decision-making process did not cite a single page of the several-thousand-page record” and did not represent “the ‘rigorous analysis’ required for class certification.”  Id. at *13. 

Second, district court found class-wide proof of causation from “statistical evidence,” namely the manufacturer’s internal studies showing that some of its marketing campaigns caused prescriptions to increase.  Id. at *13-*14.  But that was wrong too, because those internal studies did not purport to isolate the purportedly fraudulent messaging.  Taken at face value, the internal studies could show the impact of marketing generally, but not the alleged fraud. 

The plaintiffs therefore fell back on evidence that a decline in Avandia prescriptions correlated with the 2007 publication of the same disproven meta-analysis that started this whole MDL.  So (the argument goes) if those same facts (even if false) had been disclosed earlier—say, 2005, the start of the class period—prescriptions would have dropped then, too.  Voilà: causation.

The Third Circuit was having none of that:

[W]e are not aware that any court has permitted a putative class of TPPs to prove providers’ reliance by class-wide evidence without statistical evidence the defendant’s conduct caused the injuries.  The Plans could have cleared the bar if they had introduced statistical evidence of causation, like a regression analysis.  They tried.  But the District Court struck that evidence after a Daubert hearing.  Without it, the Plans have only statistical evidence of correlation and circumstantial evidence of causation. . . .  That is not enough.

Id. at *15.  There it is again—correlation is not causation.  That is not to say that plaintiffs can never prove causation on a common basis, but the standard is rigorous.  Following a long discussion of authorities in other circuits, the Third Circuit concluded as follows:

[W]e hold that TPPs in a pharmaceutical fraud RICO action may prove but-for causation with class-wide statistical evidence so long as that evidence is sufficiently rigorous to show causation, not just correlation.  Statistical evidence has such rigor if, like a regression analysis, it can distinguish the causal significance of the variable at issue and justify the rejection of competing explanations. 

Id. at *19.  The payor plaintiffs here did not have this level of proof.  The district court already excluded much of their statistical evidence as unreliable (which the plaintiffs wisely did not appeal), and what they had left fell well short of proving causation on a class-wide basis, or any basis.  Importantly, the court vacated class certification and remanded rather than outright denying certification.  The plaintiffs therefore may get another shot at developing new evidence—including discovery if the district court allows it—although we don’t understand why the Third Circuit has given the plaintiffs yet another chance after 19+ years of litigation that hasn’t proven anything. 

So the saga continues, but the path back to class certification is considerably steeper now.  Plaintiffs can use statistical evidence to prove class-wide causation, but it has to be reliable, admissible statistical evidence that isolates the effect of the fraud from everything else.  Bare correlation—even striking temporal correlation—isn’t enough.  A “common scheme to deceive” standing alone isn’t enough.  And, after Avandia, “our marketing studies show marketing works” won’t cut it either.  We will keep you posted. 

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As we have said before, the Blog is unabashedly pro-science.  There is a difference between good science and bad science, and reliance on the latter to make any important decision—be it in everyday life, litigation, or public policy—is not smart.  We are also unabashedly in favor of strict application of the Rules of Evidence, the 700 series and otherwise.  It may be overly simplistic to say that plaintiff lawyers in our kind of cases tend to want limited application of the Rules of Evidence or even no rules at all and the defense lawyers want the opposite.  It may not be.  At the same time, we appreciate whenever we have the chance to aid a jury’s consideration of competing reliable expert opinions with vigorous cross-examination by both sides.  It certainly can be the case that reliable competing expert opinions can be presented in the same case with a mutually strict application of Rule 702.  However, the existence of vigorous cross-examination and the notion that juries can do a good job weighing competing expert evidence, regardless of its relative reliability, are not substitutes for strict application of Rule 702.  Correcting that misimpression was part of what was emphasized in the 2023 amendment to Rule 702.  We, of course, knew better than to assume that the amendment would correct all misapplications of Rule 702 by federal judges and appellate panels.  We have tracked how it has gone since.  See, e.g., here, here, and here.

One thing that we have seen courts get tripped up on is temporality.  We are not talking about the concern, urged extensively by many plaintiffs in the years after Daubert and rejected by the famous Rosen observation that “law lags science,” that there could be support for a plaintiff’s expert causation opinion created after the fact so it would be unfair to ding an expert for not having support for her “inspired” “scientific guesswork.”  It would not be.  We are also not talking about the temporality criterion of the Bradford Hill Criteria, which is usually the easiest one to analyze and meet.  (We digress somewhat to note that it will often be hard to establish this temporality when it comes to a claim that gestational exposure caused a developmental disorder absent clear evidence on when the developmental disorder actually starts; some teratogens are known to have relatively small exposure risk windows.)  Instead, we are talking about the issue of when the three aspects of Rule’s 702’s reliability requirement—whether it “is based on sufficient facts or data,” “is the product of reliable principles and methods,” and “reflects a reliable application of the principles and methods to the facts of the case”—should be measured.  The right answer is that the opinion has to be reliable when formed, which correlates to the period of time leading to when the expert report is signed (for a retained expert).  Under Fed. R. Civ. P. 26(a)(2)(B), the report must include, inter alia:  “(i) a complete statement of all opinions the witness will express and the basis and reasons for them; [and] (ii) the facts or data considered by the witness in forming them.”  Consistent with the Rule 702 focus on methodology, these requirements point back to the time when the opinion is formed before the report is signed.  Not when the trial court decides a Rule 702 challenge.  Obviously, a bad methodology with an insufficient basis cannot be saved by post hoc work.  (In theory, an initial report could be withdrawn and a better report swapped in, but then the opinions being tested on a Rule 702 motion would be the ones in the superseding report.)  A few years later, when an appellate court looks at whether the opinion met Rule 702, is certainly not the time.

Another thing courts still get wrong is how burden works.  Rule 702’s amendment in 2023 was intended to clarify that the proponent of the expert opinion evidence bears the burden of establishing by a preponderance of evidence the relevance/fit and three reliability criteria.  That is clear from its formatting as well as the advisory committee notes.  We have emphasized this issue before and noted how whether a court refers to “burden” or what the proponent established can be a tell in how it will rule on expert opinion admissibility.

Unfortunately, these issues featured in Rutledge v. Walgreen Co., — F.4th –, 2026 WL 2015284 (2d Cir. July 13, 2026), where a really thorough and impactful Rule 702 decision by an MDL judge was undone by a really misguided appellate decision.  This, of course, is the Second Circuit’s reversal of the key rulings on general causation experts that led to mass summary judgment for the defendants.  We are sure there will be more to say about this decision, which also included a punt on a back-up expert in another case and a short and sloppy affirmance of an early and sloppy preemption denial.  We are going to focus on the reversal of the exclusion of three experts, the central epidemiologist and two experts whose function was to help the epidemiologist pass the “biological plausibility” criterion under Bradford Hill.  We set aside the affirmance of the exclusion of two other plaintiff experts, including whether the appellate court’s reasoning is consistent.

On the timing issue we noted, we give the Rutledge court some credit for disclaiming that political posturing since the MDL court issued its rulings played any role in its decision.  Id. at *1.  We hope that is true.  However, the temporal framing of the inquiry throughout was a bit off.  We might be nitpicking on tense and phrasing, but the timing does matter.  Another plaintiff expert coming up with a plausible biological mechanism does not help the plaintiff establish that the epidemiologist’s opinion was reliable unless the epidemiologist relied on it in forming his opinion.  Similarly, if studies came out or the consensus of professional bodies shifted in favor of causation in the years since an epidemiologist signed his report, that also would not help plaintiffs prove reliability.

The prior observation ties to our second issue above.  Other than initially quoting the “if the proponent demonstrates to the court that it is more likely than not” language from the flush language of Rule 702, Rutledge never returned to the concept of plaintiffs’ burden as proponents of the evidence.  By contrast, the failure of plaintiffs to carry their burden on a number of aspects of reliability and relevance was a key part of the MDL’s decision.  As with a summary judgment decision, burden needs to be a meaningful part of the court’s analysis.

Strangely, other than quoting them up front, the Second Circuit also seemed to ignore Rule 702(a), (b) & (d), focusing solely on qualifications (uncontested) and 702(c).  In other words, the court focused on whether (without the concept of burden) “the testimony is the product of reliable principles and methods,” but not helpfulness/fit or the other reliability provisions: “whether the testimony is based on sufficient facts or data” and whether “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”  Whether the expert purports to apply a reliable methodology—i.e., the Bradford Hill Criteria versus the Cherry-Pick Flim-Flam method—is different than whether she applies it reliably and has sufficient supporting evidence to form an opinion that general causation exists.  We find Rutledge’s reversal of the epidemiologist’s exclusion to be overly focused on his claims that other epidemiologists also use the Bradford Hill Criteria to explore different exposures and different diseases in a similar way to how he says he used them here.  Those claims, if credited, may help to satisfy 702(c) but not 702(b) or 702(d), each of which is an independent requirement.

For instance, one of the main failings of the epidemiologist’s methodology according to the MDL court was his use of a “transdiagnostic evaluation,” essentially lumping together different outcomes to manufacture the appearance of a strong association from epidemiological studies.  This sort of data dredging is roundly decried when done in individual studies.  Per the MDL court, plaintiffs failed to show it was reliable to do it for the very different conditions of autism spectrum disorder and attention-deficit/hyperactivity disorder (and other things he lumped in when it suited him).  Without the lumping, he could not offer an opinion that prenatal acetaminophen use causes either condition.  In Rutledge, the court did not require such a specific showing tied to the facts of the case, only that the epidemiologist was “using a methodology that epidemiologists routinely use.”  Id. at *11.  That is an incomplete analysis of the issues.  It is also hard to reconcile with the court’s later disclaimer that:

We do not mean to suggest that all Bradford Hill analyses that simultaneously examine multiple outcomes, or that use symptomatic as well as diagnostic endpoints, are reliable and admissible under Rule 702. We can imagine, for example, conditions which are sufficiently distinct so that a single, joint, analysis could not be performed in a reliable manner.

Id. at *12.  You can only make that distinction if you look at whether the proponent carried its burden to show the lumping was reliable for the particular issues in the case as required by Rule 702(d), which Rutledge did not do but the MDL court did.

More generally, the appellate court found the MDL court overstepped its gatekeeping function by “substitut[ing] its own definitions of certain Bradford Hill factors for those of other epidemiologists, and (ii) penaliz[ing the expert] for drawing plausible conclusions well within “the range where experts might reasonably differ.”  Id. (citations omitted).  The examples of overstepping, however, sound an awful lot like not just taking the plaintiff’s expert’s word for it that his opinion was reliable and actually testing whether the record showed the plaintiffs carried their burden to establish each element of Rule 702.  We could go on with the details, but we will end our discussion of the epi’s reinstatement by noting that Rutledge’s conclusion should only make it harder for district courts:

While the district court’s reasoning was considered and extensive, its analysis frequently overstepped its gatekeeping function by substituting its own judgments about the requirements of causality and the persuasiveness of various studies for those of scientists operating in the field.

Id. at *19.

On the other two experts whose opinions were held to have been wrongly excluded, they were, as we noted, offered solely on biological plausibility.  If the epidemiologist’s opinion was excluded, theirs would not be helpful to the jury as mechanism hypotheses alone could not possibly carry the plaintiffs’ causation burden.  Relatedly, the district court had noted that one of the mechanism experts “plays a critical role for the plaintiffs [who] rely on [him] to give his imprimatur to the transdiagnostic Bradford Hill analysis of causation applied by their other experts. His reports do not do so.”  It then explored in detail how his opinion did not provide what the epidemiologist needed to establish biological plausibility.  Rutledge deemed this an “unduly narrow definition of relevance.”  Id.  Had the appellate court considered the developed law on the “fit” requirement under Daubert and Rule 702, which it never discussed, it might have found the MDL court’s approach appropriate gatekeeping.

As to the other mechanism expert, Rutledge questioned the MDL court’s finding that the expert’s reliance on animal studies showing the opposite of his hypothesized mechanism unreliable.  Eschewing its own guidance not to “substitut[e] its own judgments about the requirements of causality and the persuasiveness of various studies for those of scientists operating in the field,” Rutledge accepted the expert’s own “counterintuitive” explanation that “[a]ny behavioral evidence of neurodevelopmental change attributable to acetaminophen supports the conclusion that acetaminophen disrupts neurodevelopment.”  Id. at *20.  Even ignoring that “neurodevelopment” is a really broad umbrella term, a study showing a decreased risk of a certain negative outcome would not be reliable support for an opinion that there is an increased risk simply because it showed some change.  That is not how this all works.

The resurrection of an MDL with such a shaky causation footing is good for plaintiff lawyers, but maybe for nobody else.  And maybe not for long.  The MDL’s denial of preemption on warnings claims at the pleadings stage was flawed, in part because the CBE regulation was not available to change the label of these monograph OTC drugs back when they were being used in the individual cases.  On summary judgment, plaintiffs will have to show that the branded manufacturers, generic manufacturers, pharmacies, and retailers could each have unilaterally changed the OTC drug labels to add specific warnings on specific risks during the relevant time of use during pregnancy based on newly acquired information.  Here, temporality favors the defendants.  The weak evidence of general causation should get weaker as you go back in time.  And it should be clearer that then-existing regulations and regulatory environment would not have permitted unilateral labeling changes by most, if not all, of these defendants.  We will be watching to see how it plays out.

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By taking a look at Akerlund v. Atlas Air, Inc., 2026 WL 1993146 (11th Cir. July 10, 2026), that makes this the third straight week in which we are pleased with a sensible vaccine decision. In this published case, the Eleventh Circuit affirms that an airline’s COVID-19 vaccination mandate did not subject its employees who resisted vaccines on various grounds to a hostile work environment.

The plaintiffs were employees in a commercial airline business. They objected to their companies’ pandemic era policies on masks, testing, and vaccines. Employees were required to get vaccinated against COVID 19, unless they obtained a religious or medical exemption, in which case they had to undergo periodic testing and wear a mask on the job.

The employees sued both the commercial airline and the company the airline used to staff the flights. The causes of action included hostile work environment under Title VII, a Federal Food, Drug, and Cosmetics Act (FDCA) violation, federal constitutional deprivations, tortious invasion of privacy, negligent disclosure of private medical information, and infliction of emotional distress. 

The district court dismissed all claims against the staffing company and some claims against the airline for want of personal jurisdiction, and the remaining claims against the airline for failure to state a claim.  

The Eleventh Circuit affirmed. First, the court held that there was no personal jurisdiction over the staffing company.  That company was not incorporated in Florida, where the lawsuit was filed, nor did it have its principal place of business there. The only connection the staffing company had with Florida was that it occasionally sent employees to Miami for training, but that did not make the company “at home” in Florida, so forget about general jurisdiction. Nor did any of the claims in the case “arise out of or relate to” those training sessions, so forget about specific jurisdiction, as well. 

But while the staffing company exited the case completely based on absence of personal jurisdiction, there could be personal jurisdiction over the airline to the extent some of the plaintiff-employees worked in the airline’s Florida facilities. Consequently, the Eleventh Circuit, like the district court, needed to address the substantive claims against the airline. 

The hostile workplace claim was a goner because the plaintiffs were offered an accommodation (masking and testing), but refused it.  Though the plaintiffs alleged that the airline was showing hostility to the employees’ religious beliefs, it turned out that the employees’ objections to the accommodation were “political and logistical,” not religious.  Moreover, the plaintiffs came across with no allegations of discriminatory intent or motive.

As flight attendants mutter as you disembark, “buh bye.”

The FDCA were grounded in the allegation that the airline “unlawfully required its employees to take medical products authorized for emergency use” (citing 21 U.S.C. section 360bbb-3). But that FDCA claim failed for the usual reason – there was no private FDCA right of action. As the court held, “they cannot sue to enforce such claims; only the federal government can bring enforcement actions under that statute.”

Prepare doors for arrival and cross-check — because you are about to get out.  

The plaintiffs’ constitutional claims purported to travel under either section 1983, which applies to state action, or the Bivens theory, which applies to federal employees. But a private airline is neither a state nor federal employee. It would have been a stretch to characterize the airline as a governmental actor just because it was complying with a Biden executive order, and courts are not inclined to stretch to permit Bivens claims. 

Look out the window. Do you see that piece of luggage being rudely tossed twenty feet in the air, missing the conveyor belt entirely? Those are your constitutional claims.

Various state-law privacy claims in Akerlund failed for lack of any information being publicly disclosed. Communications within the company referring to employees’ vaccination status remained strictly internal. Under Florida law, except in cases of physical invasion, a tort of invasion of privacy must be accompanied by publication to the public in general or to a large number of people. Not so, here. 

The employer vaccine mandates in Akerlund came nowhere close to conduct that would support intentional infliction of emotional distress.  Such vaccine requirements did not “exceed  bounds of decency.”

Do you know what does exceed the bounds of decency? Filing silly claims. Oh, and the flounder meal option, too. That was pretty bad.

Now for dessert. As a legal cherry on top, the plaintiffs’ counsel – a notorious antivax lawyer – was sanctioned for submitting multiple “filings … riddled with citations to nonexistent, ‘hallucinated’ cases.”  The court was plainly exasperated by the AI slop: “Whatever the merits of artificial intelligence, it is no substitute for actual intelligence.”  It is bad enough for the plaintiff lawyer to lose the case entirely, but it turned out so much worse for him. The Chief Judge of the Eleventh Circuit referred the plaintiff counsel to the relevant disciplinary committee. Ouch. That has to hurt much more than any vaccine shot. 

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There is a well-worn saying in electrical engineering — if you want to break a circuit, you can cut the wire or trip the breaker. Plaintiffs in several consolidated spinal-cord stimulator cases recently tried something more creative — they attempted to rewire the entire regulatory grid by suing the FDA itself, hoping to knock out the device manufacturer’s preemption defense before the defense could do its job. It was an audacious gambit that did not work. The court in Keys v. Medtronic, Inc., 2026 WL 2030069 (D. Minn. July 14, 2026), dismissed all but a sliver of the plaintiffs’ claims, and the novel APA strategy fizzled on the launchpad.

Keys is actually four cases decided together.  All four plaintiffs were implanted with defendant’s spinal-cord stimulator, a Class III medical device that first obtained PMA in 1984 and has since been the subject of more than 400 PMA supplements. Id. at *2. The plaintiffs’ core theory was that post-2017 PMA supplements had so significantly altered the device’s design that it had become a materially different product from what was originally approved. Id. at *3. On that foundation, the plaintiffs constructed an unusual two-track attack — standard product-liability claims against the device manufacturer, and a simultaneous APA challenge against the FDA itself.

The obvious problem with suing the FDA over a PMA decision is Buckman, which forecloses private FDCA enforcement suits. Plaintiffs tried to sidestep Buckman by styling the claim as an APA “arbitrary and capricious” challenge rather than a direct FDCA enforcement action. Clever — but the court was not impressed.

The plaintiffs needed to explain what injury gave them standing to bring this FDA suit in the first place. Their theory was that the injury was the manufacturer being able to assert a preemption defense in the product-liability cases. That is, the “harm” was not anything the FDA did to plaintiffs physically — plaintiffs expressly disclaimed that theory in briefing — but rather the availability of a legal defense in a different lawsuit. Id. at *4.  Standing, however, requires an injury in fact that exists at the outset of the litigation. But by plaintiffs’ own account, the “injury” they suffered — defendant invoking preemption — did not occur until defendant filed its motion to dismiss. That happened after the complaints were filed. So at the moment each plaintiff filed suit, the asserted injury did not yet exist. No injury, no standing. The APA claims were dismissed for lack of jurisdiction. Id.

The court also addressed the merits, finding the APA claims would fail regardless. Plaintiffs leaned heavily on 21 C.F.R. § 814.39(a), claiming it required a new PMA whenever cumulative changes were sufficiently significant. The court read the regulation and found that it does exactly the opposite of what plaintiffs claimed — § 814.39(a) governs when a PMA supplement is required (as opposed to a mere report to the FDA), and says absolutely nothing about when a new PMA, as opposed to a supplement, might be required. Id. at *4-5. Plaintiffs cited no statutory or regulatory provision that identifies any such threshold. Zero. The merits ruling was swift and conclusive.

The court then turned to the products liability claims.  The four plaintiffs were from either Kentucky or Tennessee, states with one-year statutes of limitations for personal injury and product-liability claims. Making nearly every claim dead on arrival on timeliness grounds. 

The plaintiff from Kentucky was implanted in May 2018, developed severe complications, and was advised to turn off his device by mid-2019. One of the Tennessee plaintiffs was advised to turn off her device by mid-2019; and another experienced shock-like symptoms and urinary incontinence within two weeks of her February 2020 implantation.  They all filed suit in 2025. 

The court found all of their claims time-barred on their face. Id. at *5-7. The fourth plaintiff brought claims related to a 2019-implanted device, which was time-barred on the same logic; but had a second device implanted in March 2024.  His claims relating to the 2024 device survived the statute of limitations and moved on to preemption analysis.

Here, the court applied the familiar Riegel/Buckman framework: a parallel state-law claim must allege conduct that violates the FDCA, but the claim cannot be premised on the FDCA violation itself. The gap is narrow, and the court found it swallowed most of plaintiff’s claims.

Indeed, the lone survivor was manufacturing defect. Plaintiff alleged that his device deviated from defendant’s design specifications and included specific allegations regarding improper assembly. This is the archetypal parallel claim. Further, the Eighth Circuit has counseled leniency in dismissing manufacturing-defect claims given plaintiffs’ limited access to PMA manufacturing data. So, it is hardly surprising that the court found plaintiff had done enough for this claim to survive a motion to dismiss. Id. at *9.

Nothing else did.  Plaintiffs alleged that the defendant marketed the device as safe and effective while concealing adverse events and post-market modifications. But they never alleged that defendant failed to disclose anything the PMA required it to disclose. That omission was fatal. On that ground the court dismissed several information-based claims (consumer protection, failure to warn, fraudulent concealment).  Id. at *8-9.

Plaintiff’s negligence-per-se theory based on alleged failures to submit adverse-event reports was impliedly preempted under Buckman. To the extent the claim was based on failing to update labeling, it survived Buckman but failed on pleading because plaintiff never identified any specific labeling language required by the FDA that defendant omitted. Finally, to the extent plaintiff was relying on an alleged cGMP violation, it did not support a negligence per se claim, but the court left open the possibility that, if properly developed, a cGMP violation could support the manufacturing-defect claim. Id. at *9-10.

Plaintiff’s safety-and-effectiveness warranty claims were conflict preempted because a jury verdict finding the device not safe and effective would directly contradict the FDA’s PMA determination. The remaining warranty allegations failed because plaintiff never alleged that defendant warranted anything beyond what the PMA required — expressly preempted. The claims also would have failed independently for lack of pre-suit notice under Tennessee’s UCC. Id. at *10.

Finally, plaintiff made two sales representative claims.  He alleged that defendant was negligent in using unlicensed field representatives to influence intraoperative decisions without ensuring informed consent. While defendant’s representatives were present during the surgery, the court dismissed the claim because plaintiff did not allege that field personnel failed to disclose anything required by the PMA. Id. at *11. Preempted.

Plaintiff’s most unusual claim alleged that defendant’s representatives committed negligence per se by violating Tennessee’s statute prohibiting the unauthorized practice of medicine. Defendant argued there is no private right of action under that statute. Plaintiff did not respond. Under Tennessee law, the burden falls on the plaintiff to establish a private right of action exists. Silence equals concession. Claim dismissed. Id.

Plaintiffs asked for leave to amend but failed to follow the district’s local rules for doing so and — more fundamentally — identified no additional facts that would save their claims. The court, unsurprisingly, declined to let them take another swing. Id.

While manufacturing-defect claims continue to be the gap in the PMA preemption armor, the novel APA strategy that was supposed to short-circuit preemption entirely got unplugged before it ever got started.

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Not too long ago we wrote about McKenzie v. Progressive Treatment Solutions, LLC, 2026 WL 636741 (N.D. Ill. March 6, 2026).  One of the things about McKenzie that caught our eye was the statement that, under Illinois law, “misrepresentations or mistakes of law cannot form the basis of a claim for fraud.”  Id. at *6 (quoting McIntosh v. Walgreens Boots Alliance, Inc., 135 N.E.3d 73, 84 (Ill. 2019)).  As our prior post explained, the non-fraudulent legal statement at issue in McKenzie was a purported misrepresentation of “the product’s regulatory classification.  That alleged conduct is not an actionable representation of fact.”

We see those kinds of claims fairly frequently in prescription medical product liability litigation – allegations about some FDA requirement or another that was supposedly misstated or misapplied either by a regulated manufacturer or someone else in the chain of distribution (allegedly calling a §510(k) device ”approved” rather than ”cleared” comes to mind).  So, the Illinois law proposition that allegations of legal mistakes are insufficient to support a fraud – or consumer fraud – claim seems important.  But it was not something we had encountered before in the context of what we discuss on the Blog.

So we thought we’d take a look.  Also, the firm’s AI folks had just told us that one of our newly available products could generate 50-state surveys.  We’ve never used AI for that kind of thing (or much of anything at all – Bexis is not much of a fan).  So we also thought that we’d use that AI feature for a first cut of the survey, and see how good it is at finding the answer to a legal question on a state-by-state basis.

The good thing about AI is that it didn’t take much time – under 10 minutes – to generate what it called a survey.  See the end of this post for the rest.

One thing we quickly learned is that the First and Second Restatements of Torts §525 include legal misrepresentations as actionable fraud (“One who fraudulently makes a misrepresentation of fact, opinion, intention or law. . . .  ”).  AI completely missed restatements as a source of law, although occasionally cited to cases that cited them.  But once again it is questionable whether this ALI (“Always Liability Increases”) restatement actually restates the law.  The proposition that a legal misrepresentation cannot be the basis of a fraud claim has ancient roots.

A representation of what the law will or will not permit to be done is one on which the party to whom it is made has no right to rely; and if he does so it is his folly, and he cannot ask the law to relieve him from the consequences.

Upton v. Tribilcock, 91 U.S. 45, 50 (1875).  Likewise, the Restatements notwithstanding, rejection of legal misrepresentations as fraud still looks like the majority rule.  E.g., United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739, 756 (2023) (“many courts appear to have stated − as a general rule − that misrepresentations of law are not actionable at common law”) (applying similar principles to the False Claims Act) (citation omitted).

Also, this survey is somewhat different from those we usually research on the Blog.  Most of our surveys are for issues directly involving prescription medical product liability litigation.  This one isn’t (another reason we tried AI).  Nearly all of the cases for the proposition that legal statements cannot constitute fraud are not drug/device cases.  So here, we’re not trying to be comprehensive.  We’re simply looking for a firm indication whether each jurisdiction follows this general rule.

One last caveat:  There are a couple of well-recognized exceptions to legal misstatements not being fraud:  (1) fiduciary relationship cases, particularly those involving lawyers accused of misleading their clients about legal issues; and (2) “superior knowledge” by the party accused of misrepresentation.  Manufacturers and sellers of prescription medical products are not fiduciaries, although doctors might be.  “Superior knowledge” can be mushier.

So here we go.

Alabama

Alabama follows the same rule as Illinois.  “[T]he alleged misrepresentation in this case was a misstatement of law, which is not actionable.”  Johnson v. Sorenson, 914 So.2d 830, 839 (Ala. 2005).  Here is a recent example:

Alabama courts have repeatedly held that misrepresentation or concealment as to a matter of law cannot constitute remedial fraud, because everyone is presumed to know the law, and therefore cannot in legal contemplation be deceived by erroneous statements of law.  Such representations are ordinarily regarded as mere expressions of opinion on which the hearer has no right to rely.  The Alabama Supreme Court recently reiterated that the law is presumed to be known by all.

Gill v. GMAC Insurance Co., 2009 WL 103189, at *3 (M.D. Ala. Jan. 14, 2009) (citations omitted).

Alaska

As usual, not much in Alaska.  A really old – pre-statehood – case held, back in 1946, that “in the absence of actual fraud, those misled may not complain.  They are presumed to know the law equally with those who misstate it.”  In Re Town of Sitka, Alaska, 11 Alaska 201, 208 (D. Alaska 1946).  A much more recent case, Lightle v. State, Real Estate Commission, 146 P.3d 980, 984 (Alaska 2006), quotes Restatement §525’s language including “law,” but that decision did not address this issue.  See Bubbel v. Wien Air Alaska, Inc., 682 P.2d 374, 382-83 (Alaska 1984) (discussing “the question of whether a claim for relief may arise from a misrepresentation of law,” but reaching a decision on a different issue while “declin[ing] to adopt a flat rule that misrepresentations of law are not actionable in this state”).

Arizona

In Arizona “a misrepresentation of law or of the legal effect of a contract does not constitute actionable fraud.”  Barnes v. Lopez, 544 P.2d 694, 697 (Ariz. App. 1976).  Accord Pleasants v. Home Federal Savings & Loan Ass’n, 569 P.2d 261, 264 (Ariz. App. 1977) (following Barnes).  However, the Arizona Supreme Court has been rather lax in applying that rule, at least in the settlement context.  See Love v. Home Transportation Co., 641 P.2d 854, 856 (Ariz. 1982) (to “[a] person . . . untutored in the law” a statement about “illegality” could be an “opinion”).  Also, the “broader” scope of the Arizona consumer fraud statute does not include such a limitation.  Cearley v. Wieser, 727 P.2d 346, 348 (Ariz. App. 1986).

Arkansas

Arkansas also prohibits fraud claims based on alleged legal misrepresentations.

As a general rule, fraud cannot be predicated upon misrepresentations as to matters of law, nor upon opinions on questions of law based on facts known to both parties alike, nor upon representations as to what the law will not permit to be done. . . .  Reasons given for this rule are that every one is presumed to know the law, both civil and criminal, and is bound to take notice of it, and hence has no right to rely on such representations or opinions, and will not be permitted to say that he was misled by them.

Pambianchi v. Howell, 265 S.W.3d 788, 792 (Ark. App. 2007) (quoting Adkins v. Hoskins, 3 S.W.2d 322, 326 (Ark. 1928) (citation omitted).  Accord Rice v. Ragsdale, 292 S.W.3d 856, 864 (Ark. App. 2009) (“[a]s a general rule, fraud cannot be predicated upon misrepresentations as to matters of law”).

California

That misstatement of law cannot be fraud in California has been the law for quite some time:

[T]hese representations . . . did not constitute fraud in the legal sense.  They were not statements of fact but at most misrepresentations of law.  It is well settled that such misrepresentations, at least where there is no relation of trust or confidence between the parties, do not amount to fraud. . . .  Whether the true ground for the rule be that everyone is presumed (or rather, bound) to know the law, or that a representation regarding the law constitutes an expression of opinion upon which the party to whom it is addressed has no right to rely, the rule itself is thoroughly well settled.

Haviland v. Southern Cal. Edison Co., 158 P. 328, 331 (Cal. 1916) (citations and quotation marks omitted).  “[A]bsent special circumstances, misrepresentations of law do not amount to actionable fraud.”  Bledsoe v. Watson, 106 Cal. Rptr. 197, 200 (Cal. App. 1973) (citation omitted).  Thus, “[i]t is well settled . . . that misrepresentations of the law are not actionable as fraud, including under the mail and wire fraud statutes, because statements of the law are considered merely opinions and may not be relied upon absent special circumstances.”  Sosa v. DIRECTV, Inc., 437 F.3d 923, 940 (9th Cir. 2006).  See Miller v. Yokohama Tire Corp., 358 F.3d 616, 621 (9th Cir. 2004) (“fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law” because “[s]tatements of domestic law are normally regarded as expressions of opinion which are generally not actionable in fraud even if they are false”) (RICO case following California law as to the “established common law” of fraud).  See also Cal. Civ. Code §1710 (“deceit” involves false assertions of “fact”).

Colorado

In Brodeur v. American Home Assurance Co., 169 P.3d 139 (Colo. 2007), an alleged misrepresentation of authorization for use of a prescription drug could not be the basis of a fraud claim:

[T]he misrepresentation arose from the implication that the [drug] treatment had not already been authorized − an incorrect representation of a matter of law.  The misrepresentation that the treatment had not been authorized is an incorrect opinion of the legal meaning and effect of the regulations. Thus, [it] was a misrepresentation of law, not a misrepresentation of fact. . . .  As a statement of [defendant’s] opinion on a matter of law, [it] is not actionable under the general rule that requires a misrepresentation of fact.

Id. at 153-54.  “[A] representation of law is a statement of opinion as to what the law permits or prohibits, and cannot support an action for fraud.”  Id. at  153 (citation omitted).

Connecticut

We’re not at all sure that Connecticut follows the fact/law distinction.  Crowther v. Guidone, 441 A.2d 11 (Conn. 1981), held:

To require the representation to be made as a statement of fact, however, is quite different than to require that the statement be factual as opposed to legal. . . .  The latter inquiry in which the defendants would have us engage seeks to erect a barrier to shield from liability those defendants whose misrepresentation happens to concern the law.  We decline to license such deceit.

Id. at 13.

Delaware

Delaware probably follows the rule that legal statements cannot support fraud claims.  “All persons are presumed to know the law, including laypersons,” therefore “courts have declined to recognize a misrepresentation as to a matter of law as a basis for a charge of fraud or deceit in making a contract.”  Thomas v. Nationstar Mortgage, LLC, 2015 WL 5766775, at *2 n.20 (Del. Ch. Sept. 18, 2015).  Thomas cited Wal-Mart Stores, Inc. v. AIG Life Insurance Co., 872 A.2d 611, 629 (Del. Ch. 2005), wherein the chancery court held:

[Plaintiff’s] allegation that the [defendants] assured it [about] complian[ce] with the Internal Revenue Code does not state a claim upon which relief can be granted.  It is an opinion as to a matter of law.  A misrepresentation as to a matter of law is a statement of opinion only and cannot afford a basis for a charge of fraud or deceit in the making of the contract.  This is because all persons are presumed to know the law and therefore cannot be deceived by erroneous statements of law.

Id. at 629 (footnotes omitted).  The Delaware Supreme Court did not reject this rule, but reversed the result, holding that the relevant statements “implied facts” that were “known to the maker,” and thus involved more than legal opinions.  Wal-Mart Stores, Inc. v. AIG Life Insurance Co., 901 A.2d 106, 115-16 (Del. 2006).

District of Columbia

The District has “recognize[d] . . . the general rule that misrepresentations as to matters of law do not ordinarily support an action for damages.”  Hembry v. Parreco, 81 A.2d 77, 79 (D.C. Mun. 1951) (citation omitted).  Thus,

[B]ecause the relevant misrepresentation in the instant case was not a misrepresentation of fact upon which [defendant] could base his belief in the legality of his acts; rather, the relevant assurance was a misrepresentation of law.  As cases in this jurisdiction have held, “it is the general rule that misrepresentations as to matters of law do not ordinarily support an action for damages.”

Democratic National Committee v. McCord, 416 F. Supp. 505, 507 (D.D.C. 1976) (quoting Hembry).

Florida

Florida follows “the principle that fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law.”  Marks v. Fields, 36 So.2d 612, 614 (Fla. 1948) (citation and quotation marks omitted).  “It is, of course, well settled in Florida that in order to be actionable a fraudulent misrepresentation must be of a material fact, rather than a mere opinion or a misrepresentation of law.”  Chino Electric, Inc. v. U.S. Fidelity & Guarantee Co., 578 So.2d 320, 323 (Fla. App. 1991) (footnote omitted).  However, “the modern trend of cases is to find statements of fact implied in otherwise material misrepresentations which have some legal character.”  Id.

Georgia

In Georgia, “[t]he law is well settled that fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law.”  Parrish v. St. Joseph’s/Candler Health System, Inc., 874 S.E.2d 413, 419 (Ga. App. 2022).

[A] misrepresentation as to a matter of law is a statement of opinion only and can not afford a basis for a charge of fraud or deceit in the making of the contract.  This is because all persons are presumed to know the law and therefore cannot be deceived by erroneous statements of law.

BPP069, LLC v. Lindfield Holdings, LLC, 816 S.E.2d 755 (Ga. App. 2018) (quoting and following Lakeside Investments Group v. Allen, 559 S.E.2d 491, 493 (Ga. App. 2002)).

Hawai’i

As with Alaska, the strongest statement in Hawai’i is old enough to predate statehood.  See Kyles v. Lantis, 39 Haw. 440, 444 (Haw. 1952) (applying “the well-settled general rule that fraud cannot be predicated upon misrepresentations of law or misrepresentation as to matters of law”).  In a RICO case, a Hawai’i court recently followed the “routine” rule that “a legal representation . . . is not an actionable theory of fraud.”  Bolos v. Waldorf-Astoria Management LLC, 762 F. Supp.3d 975, 1013 (D. Haw. 2025) (citation omitted).  A contrary view was expressed in Elliot Megdal & Associates v. Hawaii Planing Mill, Ltd., 814 F. Supp. 898 (D. Haw. 1993), which refused to follow Kyles and would “abandon the distinction between statements of fact and law.”  Id. at 904.

Idaho

An Idaho appellate court has held that reliance on a statement of law sufficient to support a claim of fraud does not exist:

Even if we assume, though, that [defendant] made this false statement to [plaintiff], we hold that [plaintiff] could not justifiably rely on it.  Such a statement by [defendant] would have been [plaintiff’s] legal opinion as to [plaintiff’s] rights and status. . . .  Such a statement of law is a mere assertion of opinion, upon which [plaintiff] had no right to rely.

Mitchell v. Barendregt, 820 P.2d 707, 714 (Idaho App. 1991).

Illinois

The Illinois Supreme Court case that McKenzie followed stated, with citations for every proposition:

It is understood that misrepresentations or mistakes of law cannot form the basis of a claim for fraud.  An erroneous conclusion of the legal effect of known facts constitutes a mistake of law and not of fact.  Because all persons are presumed to know the law, a mistake or misrepresentation of law . . . is discoverable by the plaintiff in the exercise of ordinary prudence, [and] cannot form the basis of an action for fraud.

McIntosh v. Walgreens Boots Alliance, Inc., 135 N.E.3d 73, 84 (Ill. 2019) (citations omitted).

Indiana

The status of the law/fact distinction for purposes of fraud in Indiana is rather unclear.  More than a century ago the Indiana Supreme Court held, “[o]n the question of fraudulent representations, it may be conceded that there is no fraud in a representation as to the law of the state of the domicile of the party to whom the representation is made.”  Travelers’ Protective Ass’n v. Smith, 107 N.E. 283, 287 (Ind. 1914).  In Lawyers Title Insurance Corp. v. Pokraka, 595 N.E.2d 244 (Ind. 1992), the court questioned the distinction but declined to overrule prior precedent:

The appellate court, citing Travelers’ Protective Ass’n, determined that this was not actionable fraud, in part because it was a misrepresentation of law and not a misrepresentation of fact.  Although this precept has never been explicitly repudiated by this Court, . . . we note that the present tendency is strongly in favor of eliminating the distinction between misrepresentations of law and facts . . . .  We need not decide whether Travelers continues to be an accurate statement of the law on this issue.

Id. at 249 (citations and quotation marks omitted).

However, no subsequent Indiana decision has followed up on this issue, and lower Indiana courts have continued to apply the distinction.  See American United Life Insurance Co. v. Douglas, 808 N.E.2d 690, 703 (Ind. App. 2004) (“in general, a misstatement of law cannot form the basis of fraud because everyone is presumed to know the law and therefore, the allegedly defrauded party cannot justifiably have relied on the misstatements”); Bowman v. City of Indianapolis, 133 F.3d 513, 518 (7th Cir. 1998) (“because the Pokraka court expressly declined to eliminate the distinction, we think it appropriate to apply the law as it currently stands and to leave any major change in doctrine to the Indiana judiciary”).

Iowa

Iowa follows general rule that “[r]epresentations or statements concerning domestic law normally are not regarded as representations of fact and therefore no action for fraud arises even when they are false.”  State v. Tyler, 512 N.W.2d 552, 555 (Iowa 1994) (citations omitted).

[T]here is a distinction between a misunderstanding as to the law and false assertions of fact. . . .  That a misrepresentation or misunderstanding of the law will not vitiate a contract, where there is no misunderstanding of the facts is well settled. . . .  [A]n expression of opinion which is a matter of law cannot constitute false representations or deceit.

International Milling Co. v. Gisch, 137 N.W.2d 625, 631 (Iowa 1965).

Kansas

It’s hard to say what the current law in Kansas is.  Back in 1931 the Kansas Supreme Court applied the “rule” that “a misrepresentation on the question of law would not justify the setting aside of the release.”  Ertman v. Clemens Coal Co., 297 P. 431, 432 (Kans. 1931).  A few years earlier, that court likewise recognized “the well-established proposition . . . that a settlement will not be set aside because one of the parties did not understand its legal effect” because “persons of sound and mature mind are presumed to know the law,” Cramer v. Kansas City Railways Co., 211 P. 118, 119 (Kans. 1922), but with an exception that mistakes of law can be actionable “where the opposite party was in some way instrumental in producing the result.”  Id.  Similar is Epp v. Hinton, 138 P. 576, 577 (Kan. 1914), where the general rule that “a false representation as to a matter of law will not support an action for deceit, because it is essentially an expression of opinion” was modified with an exception for the “law of another state.”  Id. at 577.

All of this law is old, and we haven’t seen anything in a Kansas decision, state or federal court, more recent that is definitive on this point.

Kentucky

The rule in Kentucky was stated by its high court in McDonald v. Goodman, 239 S.W.2d 97, 99 (Ky. 1951).

[M]isrepresentation or concealment as to a matter of law can not constitute actionable fraud because every one is presumed to know the law and therefore can not, in legal contemplation, be deceived by erroneous statements of the law, and such representations are ordinarily regarded as mere expressions of opinion, on which the hearer has no right to rely.

Id. at 99 (quoting Tewmey v. Tewmey’s Assignee, 65 S.W.2d 479, 481 (Ky. 1933)); Moseley v. Owensboro Municipal Housing Commission, 252 S.W.2d 880, 881 (Ky.1952) (“A false representation as to law does not amount to fraud, in the absence of a trust or confidential relation between the parties.”).  This rule has been followed by comparatively recent Kentucky appellate precedent.

[A]ppellants assert their fraudulent misrepresentation claims were based upon a legal misrepresentation, rather than a factual misrepresentation . . . .  Taken at face value, there are a multitude of problems with this argument.  One is that in the absence of a trust or confidential relation between the parties − a relation the appellants have never alleged to have existed herein − a false representation as to the law, and by extension the legal effect of a written instrument, does not amount to fraud.

Reesor v. City of Audubon Park, 2017 WL 2609243, at *5-6 (Ky. App. June 16, 2017) (unpublished) (citations, including to McDonald, and footnote omitted) (emphasis original); In re Backer, 51 F. Appx. 522, 531 (6th Cir. 2002) (“Generally, Kentucky law does not recognize misrepresentations of law, only misrepresentations of fact, unless a confidential or trust relationship exists between the parties.”) (citations omitted); Compressed Gas Corp., Inc. v. U.S. Steel Corp., 857 F.2d 346, 351 (6th Cir. 1988) (a “representation, to the extent that it is a misrepresentation of law, is not actionable in Kentucky”). 

Louisiana

Louisiana may not follow the prohibition of fraud claims based on allegations of legal misrepresentations.  In Petrohawk Properties, L.P. v. Chesapeake Louisiana, L.P., 689 F.3d 380 (5th Cir. 2012), the court – generalizing from a Louisiana case involving allegations of lawyer misconduct – held:

[W]e reject [appellant’s] argument that a misrepresentation of law cannot give rise to a fraud claim.  Under Louisiana law, the relevant inquiry is whether there was a misrepresentation, suppression, or omission of true information.  Indeed, Louisiana courts have found fraud where the underlying false statement was a misrepresentation of law.

Id. at 389 (citing Lupo v. Lupo, 475 So.2d 402 (La. App. 1985) (involving a lawyer deceiving his client)).

But that’s all we’ve been able to find in Louisiana.  We also note that Louisiana, uniquely, is a code, rather than common-law, state – and the Louisiana Code provisions concerning fraud, La. Civ. C. §§1953-57, do not distinguish between misrepresentations of fact and of law.

Maine

There is not much recent law in Maine.  Dictum in State v. Deschambault, 191 A.2d 114 (Me. 1963), referencing a case from 1883, stated that “a statement of law . . . was not a fact on which to ground deceit.”  Id. at 117.  But Deschambault was a criminal case.  In Weaver v. New England Mutual Life Insurance Co., 52 F.Supp.2d 127 (D. Me. 1999), the court rejected the plaintiff’s reliance on Restatement §525, “or the purpose of expanding the scope of actionable fraud claims.”  Id. at 133.  “Defendants are correct in its assertion that under Maine law a claim for fraud must be based on a misrepresentation of fact.”  Id.  But Weaver “did not confine its analysis” to the “conclusions about . . . legal effect” that the defendant argued were the sole bases of the plaintiff’s fraud claim.  Id. at 132.

Maryland

In Maryland a defendant that “has acted on the opinion of his attorneys in making a statement,” cannot be liable for fraud “if he did so honestly.”  Brashears v. Collison, 115 A.2d 289, 294 (Md. 1955).  Citing Brashears, a more recent decision held:

Whether a contract requires the disclosure of a particular matter is a question of contract interpretation and is properly regarded as a legal matter. . . .  Seeking and relying upon the advice of an attorney not only constitutes no evidence of fraud, but it is evidence of the contrary.

VF Corp. v. Wrexham Aviation Corp., 715 A.2d 188, 198 (Md. 1998).  See Blonder v. Buckhantz, 2006 WL 8456524, at *6 (n.8 D. Md. Feb. 16, 2006) (“legal opinions . . . cannot be as a matter of law, fraudulent statements”; a statement that “is clearly a matter of law which is not fraudulent”).

This precedent suggests that Maryland law does not predicate fraud on alleged legal misstatements, but we cannot state that the rule is firmly established.

Massachusetts

Massachusetts probably allows fraud claims based on allegations of misstatements of law – at least in “business transactions” −  as its high court adopted the standard set in Restatement §525:

The elements necessary to maintain an action in deceit are summarized in Restatement: Torts, §525: “One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or refrain from action in reliance thereon in a business transaction is liable to the other for the harm caused to him by his justifiable reliance upon the misrepresentation.”

Graphic Arts Finishers, Inc. v. Boston Redevelopment Authority, 255 N.E.2d 793, 796 (Mass. 1970).

Some uncertainty arises because misstatements of law were not at issue in Graphic Arts, and earlier Massachusetts Supreme Judicial Court precedent had specifically barred fraud/deceit claims based on legal misrepresentations.  See Galassi Mosaic & Tile Co. v. City of Boston, 4 N.E.2d 291, 294 (Mass. 1936) (“It if be assumed that the quoted representation was a misrepresentation as to the effect of the statutory provision . . . and therefore false, the defendant cannot be liable for a false representation of law.”); cf. Cellucci v. Sun Oil Co., 320 N.E.2d 919, 925 (Mass. App. 1974) (applying “superior knowledge” exception to allow a fraud claim based on a “misrepresentation of law” suggesting the general rule still existed), aff’d on other grounds, 331 N.E.2d 813 (Mass. 1975).

Michigan

The Michigan Supreme Court acknowledged that “[i]t is the general rule that fraud cannot be predicated upon misrepresentations as to matters of law” in Rosenberg v. Cyrowski, 198 N.W. 905, 906 (Mich. 1924) (citation and quotation marks omitted).  But Rosenberg involved attorney statements, so an exception applied.  Id. at 906-07.  The general rule still seems to hold in Michigan.  Cummins v. Robinson Township, 770 N.W.2d 421, 435 (Mich. App. 2009) (“alleg[ations] that defendants made intentional, inaccurate statements regarding the law” cannot support “a viable fraud claim”); Dugan v. Vlcko, 2018 WL 5995482, at *5 (E.D. Mich. Nov. 15, 2018) (“it is correct that Michigan courts have found that, in most circumstances, misrepresentation of the law is not grounds for fraud claims”) (citations omitted); DIRECTV, Inc. v. Rayborn, 2003 WL 23200248, at *5 (W.D. Mich. Oct. 20, 2003) (plaintiff “cannot maintain a claim for fraud based upon [defendant’s] interpretation of federal law. . . .  The general rule is that fraud cannot be based upon a misrepresentation of law.”) (citation omitted) (one of several identical decisions).

Minnesota

The Supreme Court of Minnesota followed the rule legal fraud is not actionable, with the usual exceptions, in State v. Edwards, 227 N.W. 495 (Minn. 1929):

[I]gnorance of the law is no excuse.  Indeed it is a necessary principle or rule lying at the foundation of government.  This rule sounds in policy. . . .  It is best to adopt the theory that the rights and responsibility of every one shall be the same as if he, in fact, knew the law.  Ordinary vigilance will disclose the truth or falsehood of representations as to matters of law. . . .  It does not apply when the relation of trust and confidence is involved.  It is sufficient for present purposes to state that the general rule, which controls in this case, may be rendered inapplicable by peculiar facts and circumstances.

Id. at 495-96 (citations omitted).  That’s still essentially Minnesota law.

[A]bstract statements of law or pure legal opinions are not actionable; however, a mixed statement of law and fact may be actionable if it amounts to an implied assertion that facts exist that justify the conclusion. . . .  A representation of law that is clearly a statement of opinion does not carry an implication of fact and is not actionable.

Hoyt Properties, Inc. v. Production Resource Group., L.L.C., 736 N.W.2d 313, 318 (Minn. 2007) (citations and quotation marks omitted).  Accord Northernaire Productions, Inc. v. County of Crow Wing, 244 N.W.2d 279, 281 (Minn. 1976) (“[g]enerally, misrepresentation of law is not actionable”) (citation omitted); Lonergan v. Ellison, 2021 WL 5289553, at *3 (Minn. App. Nov. 15, 2021) (“misrepresentations of law are generally not actionable for fraud”) (citation omitted); Gatz v. Frank M. Langenfeld & Sons Construction, Inc., 356 N.W.2d 716, 718 (Minn. App. 1984) (“Misrepresentations of law are not actionable.”) (citation omitted).

Mississippi

In Mississippi, “[t]raditionally, a misrepresentation upon which an action for fraud is predicated must be a representation of fact and not a representation of the law.”  Johnson v. Brewer, 427 So.2d 118, 121 (Miss. 1983) (citations omitted) (citing Harrison v. Vermillion, 56 So. 2d 811, 814 (Miss. 1952) (“Fraud could not be predicated upon” “the expression of a legal opinion”)).

Missouri

Missouri follows “the rule that one is not permitted to say that he has been misled as to a matter of law,” recognizing common exceptions for “confidential relationship” and “superior knowledge.”  White v. Mulvania, 575 S.W.2d 184, 192 (Mo. 1978).  Thus, “[t]he general rule is that expressions of opinion, such as to a future event or for matters of law, are not sufficient for a fraud action.”  Reis v. Peabody Coal Co., 997 S.W.2d 49, 65 (Mo. App. 1999).  “[I]t has been consistently held that an action for fraud cannot be based upon a misrepresentation of law.”  Uhle v. Sachs Electric, 831 S.W.2d 774, 778 (Mo. App. 1992) (citation omitted).

The defendants concede the existence of the general rule that an action for fraud (and also an affirmative defense of fraudulent misrepresentation) cannot be based on misrepresentations of law.  That rule is based on the principle that everyone is presumed to know the law and is bound to take notice of the law and, therefore, in legal contemplation, cannot be deceived by representations concerning the law or permitted to say he has been misled.

*          *          *          *

[W]e find no error in the trial court’s conclusions that the misrepresentations were not actionable because they were misrepresentations of law.

Lucas v. Enkvetchakul, 812 S.W.2d 256, 260 (Mo. App. 1991) (citation omitted).  Accord Bowles v. All Counties Investment Corp., 46 S.W.3d 636, 639 (Mo. App. 2001) (quoting and following Lucas).

Montana

In Montana, “[g]enerally, fraud must be premised upon a misrepresentation of material fact, rather than law.”  Ryckman v. Wildwood, Inc., 641 P.2d 467, 471 (Mont. 1982).  “[O]ne cannot perpetrate fraud upon another by making any statement or representation as to the scope, operation, or effect of an existing law.”  Russell v. Sunburst Refining Co., 272 P. 998, 1005 (Mont. 1928).  See Emerson-Brantingham Implement Co. v. Anderson, 194 P. 160, 164 (Mont. 1920) (“misrepresentation or opinion expressed . . . as to what the law is relative to their respective rights in the matter, . . . is not a fraudulent misrepresentation”); H&R Block Tax Servs. LLC v. Kutzman, 2010 WL 11531369, at *4 (D. Mont. April 21, 2010) (“Because the Counterclaim only alleges a misrepresentation of an opinion on the law, . . . [it] is dismissed.”).

The usual exceptions apply.

Nebraska

With the usual exceptions, “[i]t is a general rule that misrepresentations as to law will not give rise to an action for fraud and deceit.”  Loringer v. Kaplan, 137 N.W.2d 716, 718 (Neb. 1965).  “It has frequently been held that a misrepresentation as to the law will not give rise to an action for fraud and deceit and, therefore, cannot be said to constitute conduct which amounts to a false representation or concealment of material facts.”  Kohlbeck v. City of Omaha, 318 N.W.2d 742, 745 (Neb. 1982).  “Generally a mistake of law is one upon which a party cannot rely, as all parties are bound to know the law.”  Abbott v. Abbott, 195 N.W.2d 204, 208 (Neb. 1972) (citation omitted).  See Agrex, Inc. v. City of Superior, 581 N.W.2d 428, 436 (Neb. App. 1998) (quoting and following Kohlbeck).

Nevada

There’s not much in Nevada.  Hernandez v. Creative Concepts, Inc., 862 F. Supp.2d 1073 (D. Nev. 2012), recognized, following cases applying California law, that “[a]s a general rule, fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law.”  Id. at 1094.  That decision listed :four exceptions”:  special knowledge, fiduciary relationship, affirmatively obtaining the plaintiff’s confidence, and “some other special reason to expect” reliance.  Id.

New Hampshire

The New Hampshire Supreme Court held, in DePalantino v. DePalantino, 658 A.2d 1207, 1209 (N.H. 1995):

Assuming that the plaintiff made these statements, as a matter of law they are insufficient. . . .  The statements constitute no more than the plaintiff’s opinion regarding the status of the law. . . .  Opinions regarding the status or interpretation of the law, however, generally will not provide the basis for an action for fraud or misrepresentation.

Id. at 1209 (citation omitted).

New Jersey

A century ago, one of the predecessors of the New Jersey Supreme Court held that, “[i]f the only misrepresentation was . . . as to the legal effect of the writing which defendant signed, that was not a fraudulent representation.”  Wiebke v. De Wyngaert, 101 A. 410, 410-11 (N.J. Ch. 1917).  Citing Wiebke, a less ancient decision held:

[S]tatements of law do not generally constitute fraud. . . .  A representation of what the law will or will not permit to be done is one on which the party to whom it is made has no right to rely.  It is an opinion. . . .  An exception to this rule exists where an expert possessed of superior knowledge.

PH Chaleyer, Inc v. Simon, 91 F. Supp. 5, 7 (D.N.J. 1950) (citations and quotation marks omitted).  Chaleyer, in turn, was cited as stating the law of New Jersey in a much more recent decision, that the defendant’s “representations . . . are interpretations of the loan agreement and therefore are statements of law, which cannot constitute fraud.”  Wu v. Capital One, N.A., 2014 WL 3673041, at *7 (D.N.J. July 22, 2014), aff’d on other grounds, 617 F. Appx. 214 (3d Cir. 2015).

On the other hand, a New Jersey trial court did cite the Restatement §525’s “or law” language in National Premium Budget Plan Corp. v. National Fire Insurance Co., 234 A.2d 683, 704 (N.J. Super. Law. Div. 1967), aff’d, 254 A.2d 819 (N.J. Super. App. Div. 1969), a case having nothing to do with allegations of legally related fraud.

We thought there would be more precedent in New Jersey, but we (and the AI program) didn’t find it.

New Mexico

A pair of New Mexico Supreme Court decisions from the 1950s acknowledge the general rule.  Agnew v. Landers, 278 P.2d 970 (N.M. 1954), held:

[T]he authorities seem reasonably uniform to the effect that a misrepresentation of the law cannot constitute actionable fraud.  This conclusion is sometimes based upon the theory that fraud cannot be predicated upon the expression of an opinion.  We feel that this representation in the instant case is not actionable.

Id. at 977 (citation omitted).  Rogers v. Stacy, 318 P.2d 1116, 1118 (N.M. 1957), recognized the general rule that misrepresentations of law are not actionable,” but applied the fiduciary relationship exception.  We didn’t find anything more recent that would call those decisions into question.

New York

New York law holds that “a pure opinion of law . . . may not, except in unusual circumstances, base an action in tort,” and “a mixed statement of fact as to what the law is or whether it is applicable,” which can be actionable.  National Conversion Corp. v. Cedar Building Corp., 246 N.E.2d 351, 355 (N.Y. 1969).  “Hence, in the proper circumstances there may indeed be reliance on a fraudulently expressed statement of the law.”  Id. at 356.  “[A]ll persons are treated as if they knew the law in passing on the character of their acts” so that “a representation of law which is to be taken as the expression of an opinion only.”  Municipal Metallic Bed Manufacturing Corp. v. Dobbs, 171 N.E. 75, 76 (N.Y. 1930).  But this rule only applies “[w]hen one knows the facts.”  Id.

Thus, under New York law, “a representation based on a good faith misinterpretation of the legal effect of an agreement does not provide a basis for a fraud claim,” but “[e]ven though fraud is generally confined to situations involving misrepresentations of fact, an expression of an intentionally false opinion on a matter of law may be actionable where a relationship of trust exists.”  Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 45-46 (2d Cir. 1991) (citations omitted).

It is “well settled” that “fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law.”  Statements, and even misrepresentations, of law are generally regarded as opinions which cannot be relied upon absent special circumstances.

Carolina Casualty Insurance Co. v. Capital Trucking, Inc., 523 F. Supp.3d 661, 680 (S.D.N.Y. 2021) (quoting Singh v. NYCLT 2009-A Trust, 2016 WL 3962009, at *7 (S.D.N.Y. July 20, 2016), aff’d, 683 F. Appx. 76 (2d Cir. 2017)).

North Carolina

In North Carolina, “fraud cannot be based upon ignorance of the law.”  Avriett v. Avriett, 363 S.E.2d 875, 878 (N.C. App.), aff’d, 368 S.E.2d 377 (N.C. 1988) (per curiam).  “[I]gnorance of . . . legal effect” is not a basis for a fraud claim.  Biesecker v. Biesecker, 302 S.E.2d 826, 829 (N.C. App. 1983) (citations omitted).

Generally speaking, a party cannot attack the making of a contract on the basis of fraud where the proof regarding the misrepresentation or misstatement relates to a matter of law.  This is based primarily on the following related principles:  that everyone is equally capable of determining the law, is presumed to know the law and is bound to take notice of the law and, therefore, in legal contemplation, cannot be deceived by representations concerning the law or permitted to say he or she has been misled.

Dalton v. Dalton, 596 S.E.2d 331, 333 (N.C. App. 2004) (citations and quotation marks omitted).  Accord Lockerby v. Cross Point NC Partners, LLC, 2023 WL 4918359, at *6 (W.D.N.C. Aug. 1, 2023) (“In North Carolina, a plaintiff generally cannot claim that they were misled by a misrepresentation of law.”) (citation omitted); Cross v. Formativ Health Management, 439 F. Supp.3d 616, 627 (E.D.N.C. 2020) (a “party’s statement of a legal position or an assertion about its rights or position under the law is not an actionable misrepresentation”) (citations omitted).  Cf. Cross v. Ciox Health, LLC, 438 F. Supp.3d 572, 585 (E.D.N.C. 2020) (“a party’s statement of a legal position or an assertion about its rights or position under the law is not an actionable misrepresentation for purposes of a UDTPA claim”) (citations omitted).

North Dakota

The North Dakota Supreme Court weighed in on legal misrepresentations not being fraud a long time ago.  “[I]n so far as the action may be thought to be predicated upon a misrepresentation of law, it cannot be regarded as an action for deceit.”  Hellebust v. Bonde, 172 N.W. 812, 813 (N.D. 1919).  “The argument is the familiar one that both parties are presumed to know the law, or at least “ignorantia legis neminem excusat,” and that consequently no one is capable of being legally deceived or damaged by a misrepresentation of a matter of law.”  Id. at 812.  A century later the same court followed Hellebust and held, “[plaintiffs] are charged with knowledge of statutes and ordinances.  We conclude that a claim for deceit based on misrepresentation of law is barred as a matter of law.”  Arnegard v. Arnegard Township, 908 N.W.2d 737, 751 (N.D. 2018).  Accord Jacam Chemical Co. 2013, LLC v. Shepard, 101 F.4th 954, 968 (8th Cir. 2024) (“Generally, a misrepresentation of law is not actionable fraud in tort.”) (citation and quotation marks omitted).

Ohio

Ohio law likewise has endorsed the proposition fraud cannot lie for legal misrepresentations.  “[U]nder Ohio law, a representation of law is an opinion and cannot form the basis of an action for fraud in the absence of a fiduciary relationship.”  Armatas v. Haws, 110 N.E.3d 759, 763 (Ohio App. 2018) (citation omitted).  “It has been long held that, under Ohio law, a representation of law is an opinion and cannot form the basis of an action for fraud in the absence of a fiduciary relationship.”  Id.

Plaintiffs’ allegations of “fraud” essentially assert that the defendants somehow represented the loans to be “lawful”. . . .  However, under Ohio law, a representation of law is an opinion and cannot form the basis of an action for fraud in the absence of a fiduciary relationship.

Lynch v. Dial Finance Co. No. 1, Inc., 656 N.E.2d 714, 720 (Ohio App. 1995) (citing, inter alia, Aetna Insurance Co. v. Reed, 33 Ohio St. 283, 293-94 (1877)).  Accord Barnes v. Reserve Energy Exploration, 68 N.E.3d 133, 141 (Ohio App. 2016) (same); Bergmoser v. Smart Document Solutions, LLC, 268 F. Appx. 392, 395 (6th Cir. 2008) (A legal misrepresentation cannot form the basis of a fraud or intentional misrepresentation claim, as a matter of law.”); Avery v. Joint Township Dist. Memorial Hospital, 286 F. Appx 256, 267 (6th Cir. 2008) (“Ohio courts have determined that a representation of law amounts to an opinion and therefore cannot form the basis for a fraud claim unless there is a fiduciary relationship between the parties.”).

Oklahoma

In Oklahoma, “with limited exceptions, fraud cannot be predicated on misrepresentations of law or misrepresentations as to matters of law.”  First National Bank in Durant v. Honey Creek Entertainment Corp., 54 P.3d 100, 104 (Okla. 2002) (citations omitted).  “[A] misrepresentation of law affords no grounds of redress or relief on the theory that all men are supposed to know the law.”  Nesbitt v. Home Federal Savings & Loan Ass’n, 440 P.2d 738, 743 (Okla. 1968) (citation and quotation marks omitted).  An exception exists where the defendant claims a “superior” knowledge of the law.  Id.  Thus, Oklahoma “recognizes the rule that misrepresentations of law do not form the predicate for an action based on fraud.”  Ford Motor Credit Co. v. Milburn, 615 F.2d 892, 895 (10th Cir. 1980) (citing Nesbitt).

Oregon

Oregon seems to be all over the lot.  Sorensen v. Gardner, 334 P.2d 471 (Or. 1959), first recognized the general rule:

[I]t is argued that the misrepresentations alleged are mere expressions of opinion or representations of law and therefore not actionable. This may be true of [one] representation . . . but [another] representation . . . is one of fact.  With respect to the other charges in the complaint, it is a general rule that fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law.  Thus, misrepresentations concerning the legal effect of an instrument have been held to be not actionable.

Id. at 473 (citation omitted).  But Sorenson went on to hold, in accordance with Restatement §545, that the rule did not apply to “business transactions” where legal representations could be considered facts or “the legal consequences of facts.”  Id. at 474.  But, in Wochnick v. True, 356 P.2d 515, 518 (Or. 1960), decided shortly after  Sorenson, the traditional rule applied:

Plaintiff, in effect, is contending the legal rights bestowed upon her by the documents for which she traded were other than as represented. . . .  Therefore, the representation, if made, was a representation of opinion as to the legal effect of the documents in question, and she was not entitled to rely thereon.

Id. at 518.  See Travis v. Knappenberger, 87 F. Appx. 24, 26 (9th Cir. 2003) (because plaintiff “was aware of all the facts, . . . defendant’s statement . . . was a legal opinion” requiring summary judgment under Sorenson).

Compare:  Denison v. Brown, 2008 WL 483334, at *3 (D. Or. Feb. 19, 2008) (“[it] is well established that misrepresentations of the law are not actionable as fraud because statements of the law are considered merely opinions.”  (citation and quotation marks omitted); with Criqui v. Pearl Music Co., 599 P.2d 1177, 1179-80 (Or. App. 1979) (“The law no longer precludes actions based on fraudulent representations as to the law. Whether such a misrepresentation is actionable depends on the circumstances.”).

Pennsylvania

In addressing fraudulent concealment, the Supreme Court of Pennsylvania recently held:

[F]raudulent concealment, . . . ordinarily pertains to conduct on the part of the defendant which causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts.  Generally, the misrepresentations relied on must be misrepresentations of fact and not misrepresentations of law since all are presumed to know the law.  This Court has never applied it to an assertion that the defendant misrepresented the current state of the law.

Johnson v. Wetzel, 238 A.3d 1172, 1181-82 (Pa. 2020) (citations, quotation marks, and footnote omitted) (emphasis original).  To find anything else, we had to go back a long way:

A representation of a rule of law unless made by one supposed to have expert knowledge of the special rule to one who is ignorant of the subject, is inoperative.  Except under such circumstances, the truth or falsehood of misrepresentations of law should not be relied upon.

A. P. Landis, Inc., v. Mellinger, 175 A. 745, 746 (Pa. Super. 1934) (citation and quotation marks omitted).

Puerto Rico

We found very little (and AI found nothing) on this subject for Puerto Rico.  Adrian v. Mesirow Financial Structured Settlements, LLC, 736 F. Supp.2d 404 (D.P.R. 2010), held that the plaintiff “cannot show that her reliance was reasonable because the alleged misrepresentation regarded a matter of law.”  Id. at 422.  But Adrian was applying South Carolina, rather than Puerto Rico, law.

Rhode Island

We found nothing in Rhode Island except a block quote from Restatement §525 containing the “misrepresentation of fact, opinion, intention or law” language in a case having nothing to do with allegations of legal misstatements.  French v. Isham, 801 F. Supp. 913, 921 (D.R.I. 1992).

South Carolina

In South Carolina “misrepresentations as to matters of law are not actionable.”  Carolina Chloride, Inc. v. Richland County, 714 S.E.2d 869, 874 (S.C. 2011).  “There is no liability for casual statements, representations as to matters of law, or matters which plaintiff could ascertain on his own in the exercise of due diligence.”  Isaac v. Onions, 915 S.E.2d 492, 497 (S.C. 2025) (quoting Quail Hill, LLC v. County of Richland, 692 S.E.2d 499, 508 (S.C. 2010).  Thus, “our courts have repeatedly recognized the general rule that fraud cannot be predicated on misrepresentations as to matters of law, much less mere mistakes of law.”  Anderson County v. Preston, 804 S.E.2d 282, 292 (S.C. App. 2017), vacated on procedural grounds, 831 S.E.2d 911 (S.C. 2019).

South Dakota

South Dakota law bars fraud claims based on alleged legal misstatements.

Plaintiff’s claim for negligence is premised on the allegation that a misrepresentation of law caused its damages.  [Plaintiff] cannot avoid that fact by relabeling the name of its claim.  Because misrepresentations of law are not actionable, the allegations show [a]n . . . insuperable bar to relief.

Total Auctions & Real Estate, LLC v. S. Dakota Dept. of Revenue & Regulation, 888 N.W.2d 577, 581-82 (S.D. 2016) (citation omitted).  The omitted citation was to Meyer v. Santema, 559 N.W.2d 251, 255 (S.D. 1997), which similarly held:

[Plaintiff] is presumed to know the law. . . .  [Defendant’s] misrepresentations concerned interpretation and implementation of a . . . matter of law − misrepresentations of law are not actionable.

Id. at 255 (citations omitted).

Tennessee

In Tennessee “a statement of law cannot provide the basis for an intentional misrepresentation claim, except under narrow circumstances.”  Adams v. Delk Industries, Inc., 2021 WL 354096, at *7 (M.D. Tenn. Feb. 2, 2021).  Boyce v. LPP Mortgage Ltd., 435 S.W.3d 758 (Tenn. App. 2013), held:

[M]isstatements as to the law do not qualify as material factual misrepresentations[.]  It is well settled that a claim of fraud . . . cannot generally be supported by proof of misstatements as to matters of law. . . .  The rule, which is in essence an application of the broader principle that fraud must rest on a misrepresentation of a matter of fact . . ., is based on the principle that everyone is equally capable of determining the law, is presumed to know the law and is bound to take notice of the law and, therefore, in legal contemplation, cannot be deceived by representations concerning the law or permitted to say he or she has been misled.

Id. at 773 (citation and quotation marks omitted).  The exceptions were “not applicable in this case.”  Id.  Accord Best Choice Roofing & Home Improvement, Inc. v. Best Choice Roofing Savannah, LLC, 446 F. Supp.3d 258, 276 (M.D. Tenn. 2020) (following Boyce).

Texas

Texas follows “the general rule that misrepresentations involving a point of law or the legal effect of a document will not support an action for fraud” with exceptions for fiduciaries and “superior knowledge.  Fina Supply, Inc. v. Abilene National Bank, 726 S.W.2d 537, 540 (Tex. 1987).  Thus, “[a] representation as to the legal effect of a document is regarded as a statement of opinion rather than of fact and will not ordinarily support an action for fraud.”  Id.

The general rule, often repeated, is that fraud cannot be predicated upon misrepresentations as to matters of law.  The reason usually given for the rule is that everyone is presumed to know the law, and hence has no right to rely upon representations made to him by another, and that such representations are to be treated as mere statements of opinions and not of fact.

Safety Casualty Co. v. McGee, 127 S.W.2d 176, 177 (Tex. Comm. 1939) (citations omitted) (cited in Fina).  Accord Cromwell v. Anadarko E & P Onshore, LLC, 676 S.W.3d 860, 877 (Tex. App. 2023) (“generally speaking, fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law”) (citations omitted), rev’d on other grounds, 716 S.W.3d 515 (Tex. 2025) (dismissal of fraud claim not appealed); Visa Inc. v. Sally Beauty Holdings, Inc., 651 S.W.3d 278, 311 (Tex. App. 2021) (“compliance status is a legal opinion, not a “material fact” upon which fraud can be based”) (citations and quotation marks omitted); Evans v. Dynasty Transportation, Inc., 133 S.W.3d 672, 677 (Tex. App. 2003) (“As a general rule, a misrepresentation as to a matter of law is to be regarded as merely an expression of opinion and will not support an action for fraud and deceit.”) (citations omitted); Taub v. Houston Pipeline Co., 75 S.W.3d 606, 621 (Tex. App. 2002) (“Generally, claims of fraud cannot arise from legal opinions.) (citations omitted).  There are many more older Texas appellate decisions to the same effect, some finding exceptions and some not.

Utah

Absent an exception, the proposition that “misrepresentations of law” do “not constitute remedial fraud, is “dispositive” under Utah law.  Gadd v. Olson, 685 P.2d 1041, 1044 (Utah 1984).  “[S]tatements of opinions as to the legal effect of contracts are not generally a proper basis for a claim of fraud.”  Berkeley Bank for Cooperatives v. Meibos, 607 P.2d 798, 805 (Utah 1980).  “It’s thus settled in Utah that, as a general rule, misrepresentations of law and opinions about the legal effect of contracts are not adequate bases for actionable fraud.”  England Logistics, Inc. v. Kelle’s Transport Service, LLC, 559 P.3d 45, 57 (Utah App. 2024) (citations and quotation marks omitted).

Vermont

In Winton v. Johnson & Dix Fuel Corp., 515 A.2d 371 (Vt. 1986), the court paid lip service to the rule that statements about legal issues cannot amount to fraud, but emphasized “strong qualifications”:

While representations about the status of the law were held at common law not to be actionable, and actionable only in limited circumstances in Vermont, the rule has long been subject to strong qualifications.  An important distinction must be made between representations of legal opinions and representations of fact relating to the law as it exists.

Id. at 373 (citations and footnote omitted).  Non-actionable statements “involve[] the legal meaning and effect of a statute, court ruling, document, instrument or other source of law.”  Id. at 374.  This holding was reiterated and expanded to the Vermont consumer protection statute in Webb v. Leclair, 933 A.2d 177, 182-82 (Vt. 2007).

Virginia

A century ago, the Virginia Supreme Court followed the “well-settled” proposition that:

A representation of what the law will or will not permit to be done is one on which the party to whom it is made has no right to rely; and if he does so it is his folly, and he cannot ask the law to relieve him from the consequences.  The truth or falsehood of such a representation can be decided by ordinary vigilance and attention. It is an opinion in regard to the law, and is always understood as such.  The law is presumed to be equally within the knowledge of all parties.

Hicks v. Wynn, 119 S.E. 133, 136-37 (Va. 1923) (citations and quotation marks omitted).

This appears still to be Virginia law.  See Phillips v. Wells Fargo Bank, N.A., 2018 WL 1946925, at *3 (E.D. Va. April 25, 2018) (“A misrepresentation of law does not qualify as a misrepresentation of a material fact.”); Batt v. Manchester Oaks Homeowners Ass’n, Inc., 2013 WL 1155519, at *5 (E.D. Va. March 19, 2013) (“such representations amounted, not to statements of fact, but either future promises or representations of law, neither of which constitutes an actionable basis for a fraud claim”); Wells Fargo Bank, National Ass’n v. Smith, 2010 WL 4622176, at *3 (E.D. Va. Nov. 5, 2010) (“A fraud claim cannot rest on a misstatement of the legal effect of a contract.”); Saunders v. Deutsche Bank National Trust Co., 2022 WL 20210733, at *2 (Va. Cir. 2022) (“a misunderstanding of the legal effect of a . . . filing is a misrepresentation of law, the knowledge of which is imputed to both parties, and not a misrepresentation of fact”) – all citing Hicks.

Washington

In Bonded Adjustment Co. v. Anderson, 57 P.2d 1046 (Wash. 1936), the Washington Supreme Court held:

This representation, if made, was one of law and not of fact and could not be a basis for an action for fraud.  The general rule is that misrepresentations as to the law, unaccompanied by any misrepresentation or concealment of the fact, cannot be made the basis of a fraud charge.

Id. at 1049 (citation and quotation marks omitted).  Accord Hobson v. Union Oil Co., 59 P.2d 929, 932 (Wash. 1936) (“the general rule is that misrepresentations of law cannot form the basis for an action for damages”; applying exception); Prest v. Adams, 252 P. 686, 688 (Wash. 1927) (“The general rule is that misrepresentations as to the law, unaccompanied by any misrepresentation or concealment of the fact, cannot be made the basis of a fraud charge.”).

That seems to be it, which seems strange.  None of these cases is indicated as being impaired, and we even checked the “distinguisheds” and found nothing on point.  We found a few stray references to the Restatement “or law” language in Washington cases:  Kaas v. Privette, 529 P.2d 23, 27 (Wash. App. 1974); Gunnarson v. Transamerica Life Insurance Co., 2014 WL 5782337, at *3 (W.D. Wash. Nov. 6, 2014); Asheim v. Pigeon Hole Parking, Inc., 175 F. Supp. 320, 328 (E.D. Wash. 1959), aff’d, 283 F.2d 288 (9th Cir. 1960) – but none of them involved allegations of legal misstatements, and none mentioned the above precedent.

We wonder if we’re missing something, but it seems like Washington does not allow fraud to be based on allegations of misrepresentation of law.

West Virginia

“Mistake of law alone will not, as a general rule, relieve one of the effect of his contract.”  Tolley v. Poteet, 57 S.E. 811, 812 (W. Va. 1907).  That’s it, except for rote references to the Restatement §525 “or law” language in opinions that have nothing to do with the legal restatement issue.  See Belville v. Ford Motor Co., 13 F. Supp. 3d 528, 545 n.20 (S.D.W. Va. 2014); United States v. Massenburg, 2004 WL 2370694, at *7 (S.D.W. Va. Oct. 21, 2004).  Whether West Virginia law remains the same after more than a century, we can’t say for sure.

Wisconsin

Bentley v. Fayas, 50 N.W.2d 404 (Wis. 1951), held:

The general principle of law applying to this type of case is . . . that fraud cannot be based upon misrepresentations as to matters of law or expressions of opinion as to what is the law governing a particular transaction. . . .  Pursuant to this principle it has been held that fraud cannot be predicated of misrepresentations as to the legal effect of a written instrument. . . .  Hence, fraud cannot be based on statements as to the law of insurance and the legal conditions on which the right of recovery on an insurance policy depends.  Our conclusion is that there is no liability . . . on a cause of action in tort based upon fraud and deceit.

Bentley v. Fayas, 50 N.W.2d 404, 408 (Wis. 1951) (citation and quotation marks omitted).  That’s been the law in Wisconsin ever since.  Suskey v. Davidoff, 87 N.W.2d 306, 310 (Wis. 1958) (“the claimed statement was with respect to the legal effect of the document, . . . and hence dealt with a matter of law rather than fact, and . . . [that] statement cannot be held to constitute actionable fraud”) (citations omitted); Nelson v. Taff, 499 N.W.2d 685, 687 (Wis. App. 1993) (“Misrepresentations of law are generally not actionable as fraud.  But there are exceptions” such as superior knowledge) (citation omitted); Ritchie v. Clappier, 326 N.W.2d 131, 133 (Wis. App. 1982) (“Misrepresentations of law are generally not actionable as fraud.”) (citation omitted); Radford Co. v. Ruan Transport Corp., 2009 WL 5216985, at *2 (E.D. Wis. Dec. 30, 2009) (“representations of law . . . as to what governs a particular transaction . . . are generally not actionable”) (citations omitted); Wojciechowski v. Amoco Oil Co., 483 F. Supp. 109, 114 (E.D. Wis. 1980) (“As a general rule in Wisconsin, fraud cannot be based upon misrepresentations of law.”) (citation omitted)

The Wisconsin Supreme Court acknowledged the “general rule” that when “the misrepresentation complained of [is] one of law . . . and therefore not the basis of an action” in Rusch v. Wald, 232 N.W. 875, 875 (Wis. 1930), but did not apply it to brokers’ fiduciary relationship with their clients.

Wyoming

Wyoming follows “the well-recognized rule that such statements [“misrepresentations as to matters of law”] relating to matters of law are not ordinarily actionable.”  State Farm Mutual Automobile Insurance Co. v. Petsch, 261 F.2d 331, 334 (10th Cir. 1958) (citing Burnett v. Taylor, 252 P. 790, 794 (Wyo. 1927) (“misrepresentations of matters of opinion and of law are not actionable”)).

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As mentioned, we used an AI function designed to generate 50-state surveys.  It was only marginally useful, although it didn’t take very long to do.  In a couple of instances, it did produce something that our own analog research methods (utilizing key numbers and shepardizing what looked like the key cases) did not.  But on far more occasions (most notably Pennsylvania), our tried and true methods unearthed precedents that the AI tool completely missed, and in some cases they were the best precedents in the state.

Nor is the AI tool really ready for prime time.  It has no concept of judicial hierarchy, and doesn’t organize string citations by either court level or date.  It doesn’t provide page cites.  It doesn’t sort federal courts of appeals by state, and compounds that problem by not including the state from which such cases originated.  Where it doesn’t find much, AI repeats the same generalized statements over and over again for each state.  It doesn’t understand what Restatements are.

Perhaps worst, this AI tool is sycophantic, which causes it to include results as “favorable” that don’t really stand for the specific proposition at all.  All in all, our readers would not want to read what the AI program generated.

Photo of Eric Hudson

You’ve probably noticed there’s been a lot of soccer going on recently. We don’t purport to be experts on the “beautiful game,” but every four years we find ourselves riveted by a sport we don’t always watch and sometimes don’t understand. The expanded field of 48 teams generated lots of unexpected excitement, and we thoroughly enjoyed Cape Verde’s Cinderella run into the elimination round, the United States winning their group, the underdog performances from New Zealand, Qatar and Australia, and of course the good-natured Viking antics from the Norwegian team and fans.  

Unlike the world cup games that left us riveted, today’s decision is a bit of a mixed bag and leaves us feeling a little blah (maybe the finals on Sunday between Spain and Argentina will provide one last blast of excitement before we put our weeks-long soccer watching binge on the shelf until 2030). Despite thinking that we’ve seen the last of them, we continue to see cases involving pedicle screws. A few months ago we wrote about a Buckman preemption decision dismissing claims involving pedicle screws.  And today’s decision offers a new take—a lawsuit against the manufacturer of a surgical robot that assists surgeons in placing pedicle screws. Nalder v. Walsh, 2026 WL 1984254 (S.D. Miss. July 9, 2026).

The plaintiff underwent lumbar fusion surgery in which the surgeon utilized a surgical robot to place pedicle screws into the plaintiff’s back. After the surgery, the doctor told the plaintiff that the “robotic arm had malfunctioned and that the L5 right pedicle screw was drilled in the wrong location.” Id. at *1. On a return visit, the plaintiff asked the surgeon how the robot malfunctioned. The doctor told him that the robot “reprogrammed” itself onto an incorrect vertebra, and that caused the surgeon to misplace the screw. The surgeon then had to replace the screw in the correct location during the surgery. The plaintiff claimed to experience neurological defects in his right foot because of the screw misplacement. He filed a malpractice action against his surgeon and included claims against the robot manufacturer for strict liability and breach of warranty. The manufacturer moved to dismiss.

Defendant’s first argument was that the complaint relied on common law strict liability claims that are no longer recognized in Mississippi—they are controlled instead by the Mississippi Products Liability Act (“MPLA”). Despite the complaint’s assertion of common law claims that no longer exist in Mississippi, the court found that the allegations tracked the statute. With that and the acknowledgement by plaintiff in his opposition to the motion to dismiss that his claims were controlled by the MPLA, the court held that the allegations were sufficient to avoid wholesale dismissal. Id. at *2.

Moving on from the threshold question about the MPLA, the court then discussed the facts alleged in the complaint. There were two: (1) the allegations that the surgeon observed the robot’s malfunction and the surgeon blaming the robot for the screw misplacement; and (2) the FDA sent the manufacturer a warning letter six months before the surgery stating that the manufacturer failed to report certain reportable events and identifying five unreported events that suggested the robot device “malfunctioned (i.e, misplaced screws) while in use.” Id. at *4.

The court next looked to whether those allegations were sufficient to state design and manufacturing defect claims. At the outset, the court noted that the complaint did not identify “how the product deviated” from the manufacturer’s design or specifications, and that the complaint did not even “mention” an alternative feasible design—both requirements under the MPLA.  Id. at *4. Absent those, and given the basic requirements of Twombly/Iqbal, we read the decision with the expectation that dismissal would be up next. But in an unexpected curve worse than a Messi corner kick, the court referenced the Seven Circuit Bausch decision—which we’ve previously bashed for its misapplication of Twombly/Iqbal—resulting in plaintiff escaping dismissal in a manner more miraculous than Argentina’s dramatic comebacks against Egypt and England. The court cited to other federal court decisions dismissing claims under the MPLA, including Deese v. Immunex Corp., 2012 WL 463722 (S.D. Miss. Feb 13, 2012) (which we blogged about here), but the court held that the bare-bone factual allegations regarding the surgeon’s statement and the FDA letter were enough to save the claims from dismissal.   

Turning next to failure to warn, the defense argued that the complaint did not allege any facts supporting the failure to warn claim and that it did not plead elements of the learned intermediary rule. The court agreed. The complaint did not identify the warnings the defendant included, did not allege that the surgeon would not have used the device if a different warning had been given, and it did not identify what warning the plaintiff claimed should have been given. Absent those details, the court held that the failure to warn claim was not “factually plausible” and dismissed the claim. Id. at *6.

The court also dismissed plaintiff’s breach of warranty claims. It dismissed the implied warranty claim because plaintiff did not oppose dismissal. For the express warranty claim, the complaint did not meet the requirements under the MPLA that a plaintiff must allege “specific statements or representations” by the defendant. Id. Instead, plaintiff made only conclusory allegations that “failed to identify the express warranties or representations that were allegedly breached.” Id. Given that, the court dismissed the express warranty claim.

It is worth noting that the reference to the FDA letter—which is almost always raised by plaintiffs in an effort to support a warning claim—was used to support the design and manufacturing defect claims.  We think there’s a good argument that a failure to report claim doesn’t exist at all in Mississippi (as we blogged about in our 50 state survey), and that raises the question how the failure to report allegation can ultimately support a design or manufacturing defect claim.  That at least suggests the plaintiff may have a tough time getting past summary judgement. In the meantime we’ll hope to hear more inspiring goal calls by Andrés Cantor this weekend.

Photo of Lisa Baird

We’ve re-read Monsanto Co. v. Durnell, No. 24-1068, 609 U.S. ___, 2026 LX 336645, 2026 WL 1825691 (June 25, 2026) (“Durnell”), a few times over the past few weeks.  As Bexis noted in his quick-out-of-the gate (and great) analysis, there is a lot in there to use in our medical device preemption cases. 

The point is, just because Durnell involved Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) preemption, please don’t just skim it and move on.

The primary reason why it deserves a spot in your regular preemption authorities rotation is because it extensively and directly relied on Riegel, and it had a lot of good things to say about the meaning of Riegel that will run counter to many arguments you see from the other side of the “v”. 

As the Supreme Court said, Riegel was instructive to its analysis in Durnell, a FIFRA preemption case, because “[i]n Riegel, the Court addressed the preemption clause in the Medical Device Amendments of 1976, which is nearly identical to FIFRA’s preemption clause.”  Durnell, 2026 U.S. LEXIS 2721 at *20 (emphasis added).  In addition:  Both the FDA (for medical devices and OTC drugs) and the EPA (for pesticides) analyze the safety of their regulated products before they can grant approval; both must ensure product labels are “neither false nor misleading”; and after approval, “the manufacturer is required to use that label and is prohibited from making any changes to the device or label” without additional federal approval.  Id.

For our purposes, just as the similarities between the express preemption clauses in the Medical Device Amendments and FIFRA made Riegel “dispositive” of the FIFRA preemption issue in Durnell, the similarities between the two should also make the holding in Durnell dispositive of Durnell-type arguments in your Medical Device Amendment express preemption matters.  See id. at *21 (Supreme Court recognizing that its Durnell “affects more that FIFRA” and applies to cases involving similar preemption provisions, like 21 U.S.C. 360k(a)).

Again: Don’t let good Supreme Court precedent go to waste!

A Durnell Recap

In Durnell, the plaintiff contended that even though the EPA had approved a pesticide’s label without a cancer warning, the manufacturer should have given a cancer warning, and was liable under state tort law for not doing so.  Id. at *6.

The Supreme Court readily found that claim preempted, because that “state tort claim would require [the manufacturer] to add a cancer warning to [the pesticide’s] label even though federal law require[d] [the manufacturer] to use the EPA-approved label without a cancer warning.”  Id. at *6-*7, *14-*15.  Thus, the state law requirement was “in addition to” and “different from” the manufacturer’s federal-law labeling obligations, and preempted.  Id. at *18.

The Supreme Court also shot down three arguments raised by the Durnell plaintiff in trying to avoid preemption.

First, the Durnell plaintiff argued that preemption did not apply because state and federal law were consistent—basically, that Plaintiff’s state law failure-to-warn claim and a “misbranding” provision in FIFRA both require “adequate warnings” that are not “false or misleading.”  Id. at *15, *22. 

That argument failed because it “operate[d] at far too high a level of generality.”   

Looking at only FIFRA’s general standard for misbranding rather than the specific requirements imposed under federal law would nullify FIFRA’s preemption clause and the uniformity that Congress sought for safety warnings on pesticide labels.

Id. at *22.

Although the majority did not explicitly discuss whether or how to state a parallel claim that survives preemption (and the dissent said Riegel never addressed this issue at all, id. at n.9 (Jackson, J. dissenting)), this “misbranding is too general” point is interesting.  It suggests that there must be a good amount of equivalence between the duty under federal law and the duty under state law.  See, e.g., Wolicki-Gables v. Arrow Int’l, Inc., 634 F.3d 1296, 1300 (11th Cir. 2011) (genuinely equivalent); Otis-Wisher v. Medtronic, Inc., 616 F. App’x 433, 434 (2d Cir. 2015) (identical). 

In any event—and this is key—regardless of what warnings the Durnell plaintiff believed should have been given over time, different or additional warnings flew in the face of the specific labeling requirements that the EPA actually had imposed in reviewing and approving specific label language.  Id. at *22.

Second, the Durnell plaintiff suggested that “the EPA-approved and EPA-required label” had “become misbranded over time due to new evidence.”  In essence, they argued that post-approval events had overtaken the EPA’s initial label approval, with new information rendering that label inadequate over time.  Id. at *25-28.  That argument also failed. 

Allowing a post-approval failure-to-warn claim as plaintiff suggested “would negate FIFRA’s express preemption clause, expose manufacturers to potentially massive tort liability for doing what EPA required them to do, and eviscerate the ‘uniformity’ of EPA’s labeling determinations.”  Id. at *28.  

Simply put, the plaintiff’s allegations about new information did not deprive the EPA’s original warning label determinations “of their preemptive force.”  Id. at *29.

Durnell also recognized that such arguments also “contravene” the Supreme Court’s Riegel decision. 

Similar to the EPA’s powers under FIFRA, the FDA is authorized to “withdraw premarket approval for a medical device based on ‘newly reported data or existing information’” and is required to do so if it newly determines the device is unsafe in ineffective.  Id. at *28-29 (quoting Riegel, 552 U.S. at 319).  Despite that federal power to reassess new data and to change its approval decision, the Supreme Court in Riegel still concluded that the in-effect premarket approval imposed federal requirements that preempted state tort suits.  Id. at *29 (citing Riegel, 552 U.S. at 322-23). 

A third, and related, argument was one of policy.  The Durnell plaintiff suggested that the regulatory response would inevitably lag the development of post-approval safety information and thus federal regulation and preemption should step aside and allow that gap to be addressed through plaintiff-driven state tort lawsuits.  Id. at *30. 

The Supreme Court was not swayed.  Not only did its textual analysis of “in addition to” and “different from” express preemption provisions preclude such claims [id. at *18], imposing liability also was unnecessary given regulatory authority.  Similar to what is required of medical device manufacturers, FIFRA requires manufacturers to “apprise EPA of new information ‘regarding unreasonable adverse effects’ of their pesticides”; it allows the EPA to require more information, conduct new scientific analyses, and review third party petitions to modify or cancel a pesticide’s approval”; and it has other mechanisms for outsiders to bring new safety information to the regulator’s attention as well.  Id. at *30-31. 

In other words, the “comprehensive regulatory regime” provides EPA with “a variety of tools to learn of and address new safety information” but in an event, “as a matter of law, state tort law may not impose labeling requirements ‘in addition to’ or ‘different from’ federal requirements imposed under FIFRA.”  Id. at *31.

Using Durnell In Medical Device Preemption Cases

The Supreme Court itself said that Riegel controlled Durnell, and that Durnell would affect more than FIFRA cases, so there is no mystery about whether Durnell matters to the issues in our sandbox.  It does; the Court itself says so.

But more than that, doesn’t Durnell actually wipe out a lot of the parallel-claim nonsense in the medical device sphere?

Think about Bausch v. Stryker Corp., 630 F.3d 546, 554-55 (7th Cir. 2010), in which the Seventh Circuit rejected the defense arguments that Quality System Regulations (QSRs) and CGMPs are “too general to allow juries to enforce them.” But Durnell just said that “misbranding” operated at “far too high a level of generality,” and we would argue that Durnell‘s conclusion carries through to QSRs and CGMPs as well.

Think also about Stengel v. Medtronic Inc., 704 F.3d 1224 (9th Cir. 2013).  Wasn’t that a Durnell-style post-sale duty to warn claim?

In particular, the Stengel plaintiff’s contention, as proposed in an amended complaint, was that the device manufacturer had a federal law “continuing duty to monitor the product after pre-market approval” and a failure to comply with that federal duty breached the “duty to use reasonable care” under Arizona negligence law.  Id. at 1232.  Sorry, but that is a lot of “too high a level of generality” on both the federal requirement side and the state requirement side.

Then there is Stengel’s stated rationale for finding plaintiff’s claim not preempted: “Arizona state law has long been concerned with the protection of consumers from harm caused by manufacturers’ unreasonable behavior.”  Id. at 1233. 

Durnell shut that down, recognizing that the regulatory authority afforded the EPA under FIFRA was more than well-equipped to address safety concerns—and if anything, the FDA’s regulatory powers are even greater where PMA medical devices are concerned.   

Of course, the Stengel majority also stepped in to re-work the plaintiff’s claim by purporting to identify a more “precise parallel”—namely the federal requirement to report adverse events to the FDA and a state-law duty to warn.  See id. at 1233.

Judge Watford, in his concurrence, recognized that this gloss meant the plaintiff would “ultimately have to prove that” the new and different information—not included in the federally-required warning label—would have had to reach Mr. Stengel’s doctors, and resulted in a different medical treatment decision that would have prevent his injuries.

Setting apart the other reasons why Stengel is nonsense (see, e.g., here and here), doesn’t this run squarely into the most fundamental point in Durnell?  Durnell looked past all the arguments about new and different information developed post-approval, and recognized this one fundamental truth: A different warning is a different warning is a different warning. 

If the federal regulator didn’t require that warning to be given, then state law cannot require otherwise, full stop. 

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This makes two weeks in a row with vaccine cases. Last week we discussed yet another Constitutional challenge against mandatory vaccination. This week we look at Nguyen v. Sec’y of Health and Human Services, 2026 U.S. Claims LEXIS 1650 (U.S. Ct. Fed. Claims June 22, 2026), a federal circuit Vaccine Act compensation case.  Such cases are infrequently interesting, but this one contains one of the most thorough take-downs of case reports as poor quality scientific evidence that you will likely ever see.  

The claim in Nguyen, which was rejected, was that a hepatitis B vaccine caused the plaintiff to suffer from a neurological condition, Guillain-Barré syndrome (GBS). Because GBS was not listed on the relevant Vaccine Table, this was a non-table injury case (duh), and thus the plaintiff had to satisfy “traditional causation standards” (not so duh). More specifically, the plaintiff needed to present preponderant evidence of (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect; and (3) a temporal relationship between vaccination and injury.  The court accepted that the plaintiff met the requirement of temporal relationship (the GBS hit the plaintiff between two and five weeks after the vaccination).  So that’s one out of the three requirements being met.  But that’s it. And, riffing off the old Meatloaf song, one of three is bad. 

The court did not see a logical cause and effect scenario, so that was bad news for the plaintiff — bad enough to end the case.  But the court devoted most of its analysis to the medical causation theory, and there the plaintiff had serious problems.  

First, the plaintiff proffered a neurological expert with fine qualifications in the field of neurology, but the real issue here was immunology. The mismatch between expertise and the issue at hand was viewed by the court as a “detriment” to the plaintiff’s case.  The defense expert, too, was a neurologist, not immunologist. That, too, is a detriment, but it is the plaintiff, not the defendant, who “bears the burden of presenting a persuasive case.”

Then the Nguyen court carefully analyzed both the case law and epidemiology on vaccination causation of GBS. The plaintiff’s proposed biological mechanism was “molecular mimicry,” which had support that could be characterized as frail at best.  The epi studies either involved a different vaccine or reliance on an unreliable database (described in another case as a “stocked pond”), and discredited experts. At most, the plaintiff could claim a standoff on epidemiology – again, that is not enough to meet the plaintiff’s burden. 

That leaves us with case reports and case series.  This is the part of the case that will most gladden the flinty hearts of defense hacks. A case report equals mere anecdote, and “anecdote” is not the singular of “data.”  Other Federal Circuit cases considering vaccine claims have “endorsed, albeit indirectly, a view that case reports merit little weight.” The Nguyen court does a good job of collecting many cases discounting case reports, both in and out (e.g., the Abilify MDL) of the vaccine program. Then, “in accord with these judicial authorities,” the Nguyen court declined to give the plaintiff’s “case reports much, if any weight.” Even beyond the general principle that case reports are weak, the particular ones cited by the plaintiff were especially off the mark. 

The Nguyen court directly confronted another case that came to a contrary result. The “primary difference” between the cases was the weight of case reports, and the Nguyen court held that the weight was too little to permit the plaintiff to proceed with the vaccine compensation claim. Naturally, we side with the Nguyen case and give a bitter side-eye to the more lenient, permissive, pro-plaintiff case. 

For any case you work on in which the evidentiary value of case reports is an issue, Nguyen is worth review and citation.

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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