Search results for: twiqbal cheat sheet.

The Twombly and Iqbal requirement that complaints set forth facts making out a plausible case for liability got a nice workout in the recent case of Guidry v. Janssen Pharmaceuticals, Inc., 2016 WL 633673 (E.D. Louisiana Feb. 17, 2016).  The plaintiff alleged that she suffered acute kidney failure after using a prescription drug.  The Complaint began with three causes of action under the Louisiana Products Liability Act (LPLA) for “composition or construction” defect, design defect, and failure to warn.  There were other causes of action, including negligence, strict product liability, negligent misrepresentation, fraud/deceit,  violations of Louisiana Unfair Trade Practices, breach of express warranty, and breach of implied warranties.   And, just as you will invariably find red beans on your plate in many Louisiana parishes, so you will find a “redhibition” claim in a drug/device lawsuit.

The defendant filed a motion to dismiss.  Because the LPLA provides “the exclusive theories of liability for manufacturers for damage caused by their products,”  (La. R.S. §9.2800.52) most of the causes of action in the Complaint were invalid. The plaintiff attempted to save “her extraneous theories of recovery with an appeal to New Jersey law.”  Her theory was that because the defendant’s home state was New Jersey, the laws of New Jersey must apply to her claims.  But the plaintiff was a resident of Louisiana.  Consequently (though not specified in the complaint, either through carelessness or shrewdness), the prescription drug was probably acquired in Louisiana and the alleged injury was sustained in Louisiana. Under those circumstances, the law of Louisiana,  not New Jersey, would govern the liability claims.  Bruce Springsteen must yield to Fats Domino. Therefore, the court dismissed the claims for negligence , strict product liability,  negligent misrepresentation, fraud and deceit, violations of Louisiana Unfair Trade Practices, and beach of implied warranty.  Adieu, non-LPLA claims.  (At this point, we hope we do not seem churlish by wondering whether Rule 11 should not smack down common law product liability claims in Louisiana.  The LPLA has been in force for over 25 years and its exclusivity is both express and well-settled.  And yet, plaintiffs continue to file frivolous common law claims.  OMD! – i.e., Oh mon Dieu.)Continue Reading Cajun TwIqbal Kiss-off

This post is from the non-Winston & Strawn side of the blog.

As we write today, we are nine days from an event, two years in the planning, that we have mentioned in these pages before.  We are taking the Drug and Device Law Dowager Countess (nearly 88) and her slightly younger sister to see…

Happy New Year!

It’s been 3 ½ years since we last updated our index to our online research resources.  That’s almost ⅓ of the total life of the blog, which started in way back in 2006.  We’ve been blogging now for well over ten years.  Our first substantive research post, on the presumption against…

We’ve been blogging now for well over seven years.  Our first substantive posts went up on November 15, 2006, and by now about 2450 have followed. We use this blog regularly as a research tool.  A lot of you probably do, too.  Even for us, it’s getting hard and harder to find what we’ve already…

Back when Bexis was still at Dechert, we put up a cautionary post called “CAFA Not With Standing.”  In that post we cautioned against using constitutional standing as a defense to class actions with questionable and attenuated damages claims.  Remember CAFA, we pointed out.  The damages sought in state-court class actions need to support federal Article III standing, or else defendants won’t be able to keep the actions in federal court.
Well, yesterday the court in Bouldry v. C.R. Bard, Inc., No. 12-80951-CIV, slip op. (S.D. Fla. Dec. 18, 2012), addressed precisely the situation discussed in that post.  Fortunately, our side won, and the class action stayed in federal court, where there are plenty of other arguments against its validity.
First, we have to point out that Reed Smith was involved in the Bouldry case, so we can’t say as much as we’d like.  We’ll have to stick to the legal propositions.  As for the facts, all we can say is that the Bouldry opinion should be applicable to other attenuated injury class actions, regardless of the product or conduct involved.
Bouldry involved a state class action in Florida alleging that a medical device had a higher risk of failure than it should.  The class consisted of people who had not suffered any failure.  There are good arguments that this sort of at-risk damages are not recoverable under most states’ laws − see our no injury scorecard, and in particular the Shiley heart valve cases from the late 1980s and early 1990s, which addressed similar allegations.  Hint:  the defendant won almost all of them.Continue Reading At Risk Claims Sufficient To Support Federal CAFA Jurisdiction

When we convince a court that an action against one of our clients must be dismissed for failure to state a claim – say, for TwIqbal reasons – under Rule 12, we sometimes say that the plaintiff’s case was so poor that s/he couldn’t even get to first base.  A much rarer form of dismissal,…

We’ve been blogging now for more than four years. Our first substantive posts went up on November 15, 2006, and by now more than 1450 have followed those.
Frankly, even for us, it’s getting hard to find stuff.  And since we actually wrote all these blasted posts, and presumably remember at least some of what’s…

Drug & Device Resources

Bexis’ Book

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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