A mere two weeks ago, we praised a California federal court for dismissing preempted claims against a prescription drug manufacturer and not giving the plaintiff a third chance to plead a non-preempted claim. We noted that allowing three strikes seems to be the default rule on serial amendments in response to motions to dismiss or
Two Strikes Was Enough In California Federal Court
Over the life of the Blog, there have been many posts taking issue with the pro-plaintiff leanings of California courts, which have resulted in many questionable decisions on issues ranging from expanding personal jurisdiction to shrinking preemption to re-writing the duties of medical product manufacturers under California law. We have also thrown more than a
Buckman Limits Claims In A Commercial Case
The Supreme Court decided Buckman in the context of a fairly large product liability litigation about implanted medical devices. In the years that followed, the plaintiffs in drug and device product liability litigation tried a number of arguments to cabin the impact of Buckman. For instance, they argued that it 1) did not apply
Claims Can Still Be Preempted If The Drug Is Later Withdrawn
Long ago, it seemed that large-scale drug or device litigation was usually spurred on by a recall, market withdrawal, or major labeling change describing a new risk or limiting the scope of product use. The plaintiff lawyers these days seem to be more willing to put their energy into attacking currently marketed products without triggering
Second Circuit Disappoints With Big Reversal
As we have said before, the Blog is unabashedly pro-science. There is a difference between good science and bad science, and reliance on the latter to make any important decision—be it in everyday life, litigation, or public policy—is not smart. We are also unabashedly in favor of strict application of the Rules of Evidence
An Ultra Processed Complaint Fails
This post comes from the non-RS and non-Dechert side of the Blog.
The great post-modern existentialist philosopher John Madden once said, “If you have two quarterbacks, you actually have no quarterback.” This was not the result of a fanciful math equation where you (impermissibly) divide by zero. In American football, except on rare trick plays
Not Everyone Can Hop On A Bandwagon: Product Identification Still Matters
Like many, many people around the world, we have spent a good chunk of the last two weeks following the World Cup. Not just the U.S. team or even the clips of first-time visitors to the U.S. reveling in its regional cuisine and cultural quirks. We have found ourselves watching intently as teams from two
Removing Common Sense From Removals Sua Sponte
We rarely get riled up about a decision related to removals and remands. A rejection of snap removal or a misapplication of Ruhrgas might quicken our nerdy pulses, but not engender our sense of outrage like many, many other things we have posted about through the years. However, we read a decision where a veteran
Pleading Around Obvious Defenses
The now well-known requirement from the TwIqbal cases that a complaint contains factual allegations that establish that relief is plausible derives from Rule 8(a)(2) requirement that each pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” One recurring point of contention in drug and device litigation
A Device That Uses Magnetic Levitation Sounds Pretty Innovative To Us
This post is from the non-RS side of the Blog.
Consider the following scenario. A fifty-two-year-old woman has end-stage left ventricular heart failure despite medical care and the latest medications. Her prospects for a heart transplant or the implantation of a left-ventricular assist device to prolong her life are limited, including by financial considerations. She