From its start, the Blog has railed against certain expansions of traditional product liability that could have negative impacts on scientific progress and the availability of good medical products. Innovator liability, first described in Conte back in 2008, is a good example of a bad idea. Its offspring, the so-called duty to innovate
A Not-So-Brotherly Shove
Four weeks ago, we posted concerning an MDL judge’s decision not to sanction a plaintiff lawyer for false representations concerning diversity jurisdiction. We disputed that acting in the client’s “best interest” was a good excuse and questioned whether MDL courts cut plaintiff lawyers more slack than they should. We also had a bit of a
Double Shot Thursday: Express Preemption Based on an OTC Drug Monograph and The Delaney Clause and Personal Injury Litigation— FDA Delists Color Additive Red No. 3, But Will It Be Enough to Attract Even Dyed-in-the-Wool Plaintiffs Lawyers?
Like the radio stations of yore did with songs, we offer up two related posts back-to-back instead of the usual one. We cannot offer a “favorite artist” as the source of consecutive songs, we offer two posts that relate to the legal implications of some of the typical things that FDA does and has been
Playing The MDL Game
This time of year, many of us are focused on the NFL playoffs. For someone who watches the Super Bowl for the commercials or the halftime show, which team wins may not matter much. For those devoted to a particular team, however, there is one possible result that will be truly satisfying. The reality is
No Liability For Contributing Funding For Research Activities
Public policy favors scientific and medical research. So do we. While the theories of various claims asserted against sponsors of medical research—and the reasons for rejecting them—vary greatly, the underlying incentive to promote good research certainly plays a role in protecting those that sponsor and conduct medical research from virtually unlimited liability for alleged
Ohio Does Not Recognize Public Nuisance Claims For Products
This is from the Holland & Knight side of the Blog only.
If you have followed the Blog, then you will know that we have long touted the importance of Erie deference by federal courts sitting in diversity. We have also questioned the expansion of tort law to allow governmental entities to use public nuisance to shift the costs of governmental services to private entities without calling it a tax. We have even discussed the issue of abrogation of common law claims, which can be seen as a lingering source of unchecked liability, when a state enacts a product liability act. For various reasons, however, we have largely declined to comment on the use of public nuisance as the primary theory for governmental entities as plaintiffs in opioid litigation. Today’s post is an exception, and it deals with a pretty significant decision, which we think is overdue.Continue Reading Ohio Does Not Recognize Public Nuisance Claims For Products
Guest Post: Is Social Media Really A Public Nuisance?
This is a guest post from John Vaughan, a partner at Holland & Knight who has been in-house at both pharma and tech companies, which gives him some extra insights into the decision discussed below. As with all guest posts, the author gets all the credit and blame for the content of the post
The Appealability of Remand Orders Can Affect Removal Strategy
We have written many times, as recently as Tuesday, that the practice of plaintiff lawyers to include patently inapplicable claims among a laundry list of causes of action asserted in complaints is lazy, if not problematic. It is rare to see a plaintiff self-regulate and cull down an overbroad pleading without a defense motion
Class Complaint Fails in OTC Drug MDL
When it comes to MDLs that concern a bunch of cases about a drug or device, they typically have a name like “In re [name of product(s)] Product Liability Litigation” or “In re [name of product(s) Marketing and Sales Practices Litigation.” In theory, the first group of MDLs involves, shockingly, product
Plaintiffs Fail to Backdoor Expansive Early Discovery in GLP-1 MDL
We have no personal knowledge of the litigation concerning GLP-1 receptor agonist medications and the Blog has not posted on it yet, but we do know something about litigation over widely used prescription medications. Over the decades, there have been many drugs or classes of drugs that became “blockbusters” because they were widely prescribed to