Today’s post is a report on Jazmine Harris v. Topco Associates, LLC, ___ F. Supp.3d ___, 2021 WL 1885981 (N.D. Ill. May 11, 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,
A Defense-Friendly Take on Albrecht
This blog has discussed Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (2019), and its progeny on multiple occasions. We provided a quick take when Albrecht was issued; discussed the decision’s possible ramifications here and here; expressed consternation at certain parts of the decision; reported here and here on how
Motion To Dismiss in Textured-Breast-Implant Litigation Gets The MDL Treatment
This post is from the non-Reed Smith side of the blog.
This blog has repeatedly lamented the tendency of MDL courts to flout federal pleading standards when assessing the sufficiency of master complaints. All too often MDL courts disregard Rule 8(a), which—as authoritatively interpreted by the Supreme Court in Twombly and Iqbal—requires plaintiffs to
Plaintiffs Cannot Invoke the Res Ipsa Loquitur Doctrine—or a Laundry List of Alleged Regulatory Violations—as a Substitute for Pleading Facts
Today we report on a recent decision dismissing manufacturing-defect, warranty, and failure-to-warn claims arising from an allegedly defective breast implant. Although the decision, D’Addario v. Johnson & Johnson, 2021 WL 1214896 (D.N.J. 2021), does not stray far from the beaten path, it covers ground worth revisiting. The decision is a useful (if cursory) reminder
Court Dismisses Lanham Act Claims Brought By Device Manufacturer Against Competitor
A Vaudeville act is supposed to leave the audience wanting more. Not so a judicial decision. But that is what we have today: a decision whose result—the dismissal of Lanham Act claims brought by a device manufacturer against a competitor—is underexplained.
The plaintiff in Impact Applications, Inc., v. Concussion Management, LLC, 2021 WL 978823
Decision Dismissing Claims Against Generic Drug Manufacturer On Implied-Preemption Grounds Also Helpful In Other Contexts
Today’s post discusses a recent implied-preemption decision that is relevant beyond the generic-drug context in which it arose.
A bit of background first.
In Buckman Company v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), the Supreme Court held that 21 U.S.C. § 337(a)—which declares that all actions to enforce the FDCA “shall be by
Exhibiting Insight and Confusion, Court Dismisses Product-Liability Claims Against Surgical-Mesh Manufacturer
Today’s case, Knudsen v. Ethicon, Inc., 2021 WL 390825 (M.D. Fla. 2021), involves product-liability claims against a surgical-mesh manufacturer. In a short decision, the court dismissed manufacturing-defect and implied-warranty claims as inadequately pleaded under Michigan law. Although not fully developed, the court’s reasons for dismissing the claims exhibit both insight into manufacturing-defect claims and
Implied Preemption In Commercial Litigation
This post is from the non-Reed Smith side of the blog.
In future posts I will get to the point with little delay, but because this is my first post for the blog, a short introduction is in order.
I am partner in Winston & Strawn LLP’s Appellate & Critical Motions practice. Questions of
First Circuit: Plaintiffs’ Specific Causation Expert Fails to Pass Muster in Benzene Case
Last week, we (along with many of you, we assume) attended the DRI Drug and Medical Device conference in Chicago. We re-connected with friends dating to the beginning of our lengthy career (literally – ran into the head of our decades-ago summer associate program), met lots of new people, and attended great parties. (Perhaps we are biased, but we thought the reception Reed Smith co-sponsored was particularly fabulous – stunning venue, fantastic food, great company and ambiance.)
Squeezed in among the parties was a whole seminar program, covering all manner of hot topics in the mass tort space in which we practice. We were (as we always are) awed by the sheer intellectual firepower the speakers brought to bear and by the depth of their knowledge and the thoroughness of their preparation. We also enjoyed observing the diversity of presenters’ styles. Some were earnest and academic, some deceptively casual and colloquial, still others politician-impassioned. As wordsmiths, we always delight in this, and we count it among the reasons we like today’s case, which follows a mostly serious and measured (albeit dismissive) majority opinion with a snarky and stylized dissent. (Guess which one was more fun to read.)
Milward v. Rust-Oleum Corp., 2016 U.S. App. LEXIS 7470 (1st Cir. Apr. 25, 2016), is not a drug or device case. It is the First Circuit’s review of the District of Massachusetts’s exclusion of the plaintiffs’ specific causation expert in a benzene-exposure toxic tort case, but the issues are identical to Daubert issues we face in our cases.Continue Reading First Circuit: Plaintiffs’ Specific Causation Expert Fails to Pass Muster in Benzene Case