For the second time in three weeks a court has denied an injunction that would have compelled a hospital to administer ivermectin to a patient seriously ill with COVID-19. We previously reported on the first of those decisions, Smith v. West Chester Hosp., LLC, 2021 WL 4129083 (Ohio Com. Pl. 2021). Today we report
Federal Court: Anti-Vaxxers Do Not Have a Constitutional or Statutory Right to Endanger Everyone Else
Today we discuss a putative class action in which the named plaintiffs are a registered nurse who refuses to take a basic precaution to protect her vulnerable patients and a mother who is more interested in displaying her livestock than protecting her neighbors. Brought on behalf of all New Mexico residents who are equally selfish,
Ivermectin and COVID-19: Seriously, y’all. Stop it.
On Monday, Bexis, laboring on Labor Day, blogged about a kooky Ohio decision ordering the off-label administration of an animal drug, ivermectin, to a seriously ill COVID-19 patient over the objections of that patient’s treating physicians and of the hospital in which the patient was being treated. The decision was kooky both medically and legally.
Tennessee Trial Court Holds Claims Preempted Notwithstanding Alleged Off-Label Use Of A Medical Device
Today we discuss Sherrod v. Smith & Nephew, Inc., 2021 Tenn. Cir. LEXIS 74 (Tenn. Cir. Ct. 2021), a recent Tennessee trial court decision granting the defendant device manufacturer summary judgment on preemption grounds. Notwithstanding one quibble, there is much to like about the decision.
The plaintiff, who asserted a plethora of product-liability and
Recent Second Circuit Implied-Preemption Decision Confirms That A ‘Major Change’ Is A Big Deal In Pharmaceutical Litigation
We’ll get to the recent Second Circuit decision, Ignacuinos v. Boehringer Ingelheim Pharms., Inc., — F.4th —-, 2021 WL 3438355 (2d Cir. 2021), in due course, but first some background.
One of our top ten decisions in 2018 was Gustavsen v. Alcon Labs., Inc., 903 F.3d 1 (1st Cir. 2018), an important implied-preemption
Does the State of Washington Recognize A ‘Direct-to-Consumer’ Exception to the Learned-Intermediary Doctrine?
A federal court has asked the supreme court of Washington to address the scope of that state’s learned-intermediary doctrine. In particular, it has asked whether Washington recognizes a “direct-to-consumer” exception to the doctrine.
Under the learned-intermediary doctrine, which has been adopted by every state other than West Virginia, a manufacturer of a prescription medical product
Supreme Court Holds that the Violation of a Statutory Right Is Insufficient To Establish Article III Standing in a Damages Action
To bring suit in federal court, a plaintiff must have “Article III standing.” That is to say, the plaintiff must have a personal stake in the suit’s outcome. This is true whether a plaintiff is suing individually or as a member of a class.
Late last week, in TransUnion v. Ramirez, — S. Ct.
Neither the ‘Malfunction Theory’ Nor the Res Ipsa Loquitur Doctrine Excuses A Plaintiff’s Failure to Offer Evidence of a Defect
Today we report on Black v. DJO Glob., Inc., — P.3d —-, 2021 WL 2346038 (Idaho 2021), a short and sweet decision rejecting yet another plaintiff’s attempt to maintain a product-liability claim without evidence of a defect in the medical device at issue. Holding that neither the “malfunction theory” nor the related res ipsa
Causation and The Learned-Intermediary Doctrine
Today we report on two cases involving the learned-intermediary doctrine. One holds that the doctrine applies in the context of clinical trials; the other holds that it applies even when no warning was given by the manufacturer. Both cases highlight the importance of causation in failure-to-warn claims.
Under the learned-intermediary doctrine, which has been adopted
CARES Act Dooms Claim Targeting the Marketing of “Infant” Acetaminophen
Today’s post is a report on Jazmine Harris v. Topco Associates, LLC, 2021 WL 1885981 (N.D. Ill. 2021), which dismissed on preemption grounds a putative class action that challenged as fraudulent the marketing of acetaminophen for infants. The decision, whose result departs from earlier decisions in the area, highlights the importance of a provision