Much like the placement of a comma, differences in capitalization can affect meaning quite a bit. Take PrEP and PREP. The former refers to the use of certain antiviral medications for pre-exposure prophylaxis to HIV, which has been hailed as a paradigm shift in treating HIV. We recall that FDA was so impressed with
Eric Alexander
Sell or Don’t Sell: Liability May Await Either Way
For many years, even before the Supreme Court picked up the ball, we have been arguing that “stop selling” theories of liability for alleged injuries from prescription drugs should not be viable. This is not just a preemption issue. Basic product liability principles do not square easily with liability contingent on developing one drug…
Double Shot Thursday: “The More Things Change” And “Of Puppets And Standing”
As insightful and modest as the Blog can be, we are not infallible. Every once in a while, two posts get written on the same decision, sometimes because we try to make sure a new post goes up every non-holiday weekday of the year. Because of the aforementioned modesty, however, we are hesitant to deprive…
Federal Officer Removal Fails In California
It is a simple fact that product liability plaintiffs almost always prefer state court and product liability defendants almost always prefer federal court. This is a major reason why removal fights, sometimes intertwined with personal jurisdiction fights, happen so often in these types of cases. Another reason is that product liability plaintiff lawyers like to…
The Expanding Breadth Of Nexus
Back in 2020, we noted the possible broad implications of a Buckman preemption decision in a somewhat unusual economic loss case that turned on whether a compounded pharmaceutical needed FDA approval through an NDA. When that case, Nexus Pharms., Inc. v. Cent. Admixture Pharm. Servs., Inc., 48 F.4th 1040 (9th Cir. 2022), was affirmed…
Generic Causation Experts Excluded In Sweeping Ruling From The Acetaminophen MDL
It is not uncommon that terms are used without knowledge of their origin and that the origin is instructive about the meaning or proper application of the term. We offer two examples. Many lawyers who at least dabble in product liability litigation have heard the term “Bradford Hill criteria.” Was it named after two different…
The Goose And Gander Of Buying The Science
For as long as we have been representing drug and device companies in product liability litigation, the plaintiffs have accused our clients of “buying the science.” Sometimes, this has allegedly been by funding studies or offering support to outside researchers such as free product or access to administrative support. Sometimes, this has allegedly been by…
In Pari Delicto By Any Other Name Would Still Be A Bar
A few years ago, we detailed the efforts of the plaintiffs’ bar to tweak the Restatement of Torts to decrease the chance that a suit for damages would be defeated because the plaintiff engaged in a criminal act. The Restatement (Second) from 1979 called this the Wrongful Acts Doctrine, but the concept has a long…
The Fiction Of Non-Preempted Pre-Market Design Defect Claims For Prescription Drugs
As we emerge from our fourth month-long trial in a little over two years, we are sure that we have missed some recent legal developments. As good as this Blog is as a source for what is going on in drug and device product liability litigation, you do actually need to read it to absorb…
Preemption Ends Appeal Of Dyspeptic Supplement Case
We have often characterized preemption as one of the most powerful tools in product liability defense lawyers’ toolboxes. It also gets utilized effectively by lawyers defending against a variety of consumer fraud cases about FDA-regulated products. We have, for instance, covered a number of decisions where plaintiffs complained about a range of food labeling issues…