The 2024 Annual Meeting of the American Law Institute (“ALI”) got under way yesterday. Therefore, based on what happened last year (described in detail here), we assume we are on the brink of the ALI taking the monumentally non-restating step of recognizing no-injury medical monitoring. In a case of twisted timing, as we await
Search results for: We the Jury
We, the Jury
Last week we served on a jury in a medical malpractice verdict. To put it mildly, we were surprised that we made it through the peremptory gauntlet. The verdict? It was an enlightening and edifying experience.
The Selection
The fifth time was the charm. On four prior occasions, we had marched to the…
Buckle Up: The Jury Is Out in the Pinnacle Hip Implant MDL’s Third Bellwether Trial
This post comes from the Cozen O’Connor side of the blog.
After two months, the third bellwether trial in the Pinnacle Hip Implant MDL is coming to an end. The jury heard closing arguments yesterday and began deliberating late in the afternoon. They start up again this morning.
Much like the second bellwether trial, this trial was not without controversy. The signs were ominous before it began. Two weeks before trial, the court issued a sua sponte order consolidating six separate plaintiffs for the trial, close to any defendant’s worst nightmare. The court also ruled that plaintiffs could serve notices that would require company witnesses who were outside the geographic reach of the court to nonetheless testify live via satellite. Defendants could not substitute trial depositions for the satellite testimony, even though trial depositions had already been taken, complete with cross-examination of the witnesses by plaintiffs’ counsel. This order was sufficiently controversial that a Fifth Circuit judge, while concurring with his colleagues’ decision to reject defendants’ writ of mandamus challenging the order, chose to issue a one-sentence concurring opinion saying that the MDL judge got it wrong.Continue Reading Buckle Up: The Jury Is Out in the Pinnacle Hip Implant MDL’s Third Bellwether Trial
A jury reportedly finds the risks of an FDA-approved drug outweighed its benefits, and an interesting appeal should follow
We have written several times before about the good and the bad pretrial rulings in Bartlett v. Mutual Pharmaceutical Co., No. 08-358 (D.N.H.). Faithful readers will recall that the plaintiff allegedly developed Stevens-Johnson Syndrome (SJS) after taking generic Sulindac, an NSAID. The court threw out the failure to warn claim because the provider never…
Double Shot Thursday: Express Preemption Based on an OTC Drug Monograph and The Delaney Clause and Personal Injury Litigation— FDA Delists Color Additive Red No. 3, But Will It Be Enough to Attract Even Dyed-in-the-Wool Plaintiffs Lawyers?
Like the radio stations of yore did with songs, we offer up two related posts back-to-back instead of the usual one. We cannot offer a “favorite artist” as the source of consecutive songs, we offer two posts that relate to the legal implications of some of the typical things that FDA does and has been…
FDCA Preemption Delivers Sweet Win for Sugar Substitute Manufacturer
When we first read what the claims were in Cohen v. Saraya USA Inc., (E.D.N.Y. Jan. 20, 2025), we thought of the old Catskills joke about the elderly couple at dinner:
Wife: “The food here has really gotten terrible.”
Husband: “Yes. And such small portions.”
The plaintiff in Cohen filed a class…
Rush To File No Excuse for False Injury Allegations
So learned some plaintiffs in In re: Hair Relaxer Marketing Sales Practices and Products Liability Litigation, MDL 3060, 2024 U.S. Dist. LEXIS 206474 (N.D. Ill. Nov. 13, 2024). While not a drug or device case, the problem it exhibits is common to many mass torts. Plaintiffs’ counsels’ solicitations produce a rush to file complaints…
We Applaud The Preemption Analysis And Outcome In Mack v. CooperSurgical, Inc. (2024) While Bemoaning Those In Mack v. CooperSurgical, Inc. (2023)
Note: There is a table in this post that may be easier to view on a phone than on a computer.
Medical device preemption provides powerful protection from litigation involving Class III devices with premarket approval (or “PMA”).
These devices are a very small subset of FDA-regulated medical devices – around 1% — and they…
Learned Intermediary Rule Still Alive and Well in California
We have a couple of updates on the learned intermediary rule in California. We reported to you three months ago on the California Supreme Court’s tweaking of the learned intermediary rule in Himes v. Somatics, and the tweaks were not good. As we wrote back then, the Court did not make any fundamental…
Welcome to Hell
Plaintiff lawyers read this blog, which we like. Criticism occasionally comes our way because the blogposts – horrors! – harbor a particular point of view. And that point of view occasionally gets recharacterized as bias or an admission against our clients. Such recharacterizations are invariably nonsensical. So far, they have never obtained even a foothold…