When we read about a personal injury claim concerning a drug or device, we expect that the claim will be made by a patient. Khoury v. Philips Medical Systems, 2010 WL 3119902 (8th Cir. Aug. 10, 2010), has a certain man-bites-dog quality because the plaintiff is a doctor who was allegedly injured by a
Preemption and generic drugs: the Department of Justice tells the Sixth Circuit to get in line behind the Supreme Court
By dwalk on
We told you last month that the Sixth Circuit had asked the FDA for its views of preemption in the generic drug context. The FDA’s brief was due today, and we were all geared up to read it.
Alas, we must gear down. The Department of Justice filed a letter today with the Sixth Circuit…
Cornett v. Johnson & Johnson Part I: Choice of law and statute of limitations
By dwalk on
Last Friday, the New Jersey Superior Court Appellate Division issued a decision filled chock-a-block with interesting rulings. Cornett v. Johnson & Johnson, 2010 WL 2867811 (N.J. Super. Ct. App. Div. July 23, 2010). Today we’ll discuss the part of the opinion that resolves the choice of law and statute of limitations issues raised by…
It’s now not unusual to have a Lone Pine order affirmed
By dwalk on
You may have read in the legal or mainstream press that the Fifth Circuit rejected challenges to the Vioxx Master Settlement Agreement. In re Vioxx Products Liability Litigation, 2010 WL 2802352 (5th Cir. July 16, 2010). That’s all well and good, but what really interested us was not given significant play in the media,…
Law professors, juries, and punitive damages
By dwalk on
What is it about law professors? They start out like the rest of us lawyers. They usually have the same backgrounds and receive the same legal educations we do. When the rest of us go into practice, we have to back up everything we say with facts, studies, testimony, cases, etc. But the statements of…
Pennsylvania Punts Pain Pump Plaintiff’s Postponed Pleading
By dwalk on
One side effect of the Judicial Panel on Multidistrict Litigation’s refusal to make the pain pump cases an MDL is that many different courts are ruling on the inadequacy of the pain pump complaints. The Western District of Pennsylvania took its turn last week in Kester v. Zimmer Holdings, Inc., 2010 U.S. Dist. LEXIS…
Defendants prevail against medical monitoring and repetitive litigation
By dwalk on
The Third Circuit issued an important medical monitoring decision yesterday. Sheridan v. NGK Metals Corp., 2010 WL 2246392 (3d Cir. June 7, 2010). Although this case does not involve a drug or a device, several rulings should prove useful to lawyers who handle drug and device cases. To get the key points of this…
The pendulum swings too far against preemption
By dwalk on
Courts tend to overreact to Supreme Court decisions. The Supreme Court rules for a plaintiff on a specific ground and suddenly lower courts overwhelmingly rule for plaintiffs who bring even remotely similar claims. Eventually the right case works its way back to the Court, which holds that plaintiffs don’t always win, as anyone reading the…
Some good judicial work on consumer fraud claims
By dwalk on
Most lawyers’ eyes light up when they talk about the big, bold, flashy pieces of judicial work. Justice Scalia’s opinions, especially his dissents. Judge Posner’s exercises in legal scholarship. Judge Kozinski’s witty amalgamations of law and pop culture.
We like those works well enough, but we also appreciate finely tuned but less flashy opinions that…
A story to warm the hearts of defense lawyers
By dwalk on
Everyone likes to hear stories about how someone overcame obstacles, right? Magazines and television shows are filled with heartwarming stories of triumph over adversity. Well, Lewkut v. Stryker Corp., No. 09-cv-3695 (S.D. Tex. April 16, 2010), is the story of how a federal court, aided by plucky defense counsel, overcame common obstacles to the…