The definitive source for intelligent commentary on the law that matters for drug and device product liability cases
This post is only from the Reed Smith (more properly, the non-Dechert) side of the blog. It is updated whenever a relevant new decision is found.
One hundred what, you say?
Certainly not years; the awful Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008), decision just turned six – this blog…
We reported a few months ago on oral argument in the California Court of Appeal in Gilead Life Sciences v. Superior Court, where the parties argued about whether California law recognizes a broad “duty to innovate.” At issue was whether a product manufacturer could be liable to patients taking one drug for failing to…
We wrote recently that California’s courts have never met a case they did not like. We were speaking somewhat tongue in cheek of course, but still California remains a destination for litigation tourists trying to take advantage of laws and procedures that many view as plaintiff friendly. One bulwark against blatant forum shopping is personal jurisdiction under the U.S. Supreme Court’s Bauman and Bristol-Myers Squibb cases, the latter reversing the California Supreme Court, which restored some measure of discipline to jurisdiction over out-of-state defendants.
Another potential bulwark is choice of law. That is to say, even when a plaintiff sues in California, the applicable choice-of-law rules might compel the application of another state’s law, which could doom the plaintiff’s claims.
That is what happened this week in Nelson v. F. Hoffmann-La Roche, Inc., No. 21-cv-10074, 2022 WL 17259056 (N.D. Cal. Nov. 28, 2022) (to be published in F. Supp. 3d), where a Florida resident and Army veteran used a generic prescription drug while stationed in Kentucky and overseas and allegedly suffered complications. But he chose to sue in California. Why? Because the manufacturer of the branded version of the drug (not the generic version that the plaintiff actually used) was based in California at the time he filed (having relocated from New Jersey), and California is one of a very few states that allows innovator liability—i.e., holding an innovator/branded manufacturer potentially liable for a generic product that it did not make, did not sell, and from which it did not make any profit. Continue Reading Federal Judge In California Cabins Innovator Liability
Several significant decisions have recently emerged from the In re Zantac MDL, No. 2924. We gave you a “bare bones” rundown of the first four of them right away. But now we’d like to discuss them in more detail.
We start with In re Zantac (Ranitidine) Products Liability Litigation, ___ F. Supp.3d…
Ever since innovator liability burst onto our consciousness a decade ago with the horrific decision in Conte v. Wyeth, 85 Cal. Rptr.3d 299 (Cal. App. 2008), we have had nightmares about the potential impact of this theory. After all: (1) over 90% of all prescriptions these days are for generic drugs, and (2) plaintiffs…
Here’s another guest post on the Dormant Commerce Clause by our guest guru on that subject, Dick Dean over at Tucker Ellis. He reports on another possible use for the Dormant Commerce Clause that could provide a win for the our side in an innovator liability situation. As always our guest bloggers deserve 100%…
Since Conte in 2008, we have not made a secret of our view that innovator liability is a bad idea, contrary to traditional tort law principles and to sound public policy. We, especially Bexis, may even be accused of being somewhat obsessed with chronicling the decisions, big and small, on this issue over close to…
Once again we find ourselves in the position of creating new defenses to a novel, plaintiff-side cause of action. This time, we’ve been doing a lot of thinking about innovator liability – the theory that would hold branded manufacturers liable for injuries allegedly caused by the ingestion of (preemption-immune) generic drugs on some kind of…
This guest post, by long-time friend of the blog, Terry Henry of Blank Rome, is a little different than most. It was invited. We read an article Terry wrote, which, at the end (it was mostly about other stuff), advised “[a] brand manufacturer defending itself [against innovator liability] should consider, at the appropriate time,…
We recently read a news story about a man who was imprisoned for 39 years for a crime he did not commit. The crime was grisly and resulted in the violent deaths of a 24-year-old woman and a small child, leaving a community outraged and law enforcement officials determined to hold someone responsible. So, burdens…