Today’s post is a little different, in that it involves not an order, but a Motion for Relief from Judgment and to File an Amended Complaint (the “Motion”) filed by Pecos River Talc (“Plaintiff”) against Dr. Jacqueline Miriam Moline (“Dr. Moline”). Pecos River Talc LLC v. Moline, 3:23-cv-02990, Doc. No. 47-1 (D.N.J. Apr. 29, 2025). Dr. Moline is a serial expert on behalf of plaintiffs in the cosmetic talcum powder litigation, and she was the lead author on a paper entitled “Mesothelioma Associated with the Use of Cosmetic Talc” (the “Article”). The article was faked, as we originally discussed, here, in our “Stupid Expert Tricks Redux” post. That’s even clearer now, as the Motion we discuss here identifies bombshell, newly discovered evidence that undercuts the foundation of the Article and Dr. Moline’s opinions. This is a true “smoking gun.”Continue Reading The Perils of Moline, Part II – Persistence Prevails in Re-Identifying Plaintiffs in Cosmetic Talc Article
Federal Court’s Erie Analysis Concludes That Pharmacies Do Not Have a Duty to Fill Prescriptions in Oklahoma
Bad fact patterns sometimes make bad law. And sympathetic plaintiffs who experience unfortunate outcomes can lead to decisions that stray from established precedent. Today’s decision from the Northern District of Oklahoma addresses a sad fact pattern, but the court conducted a rigorous Erie analysis and concluded that the Oklahoma Supreme Court would not recognize a duty that pharmacies must fill prescriptions. Scholl v. Walgreens Specialty Pharm., LLC, 2025 WL 950866 (N.D. Okla. Mar. 28, 2025). Continue Reading Federal Court’s Erie Analysis Concludes That Pharmacies Do Not Have a Duty to Fill Prescriptions in Oklahoma
Fifth Circuit Affirms Taxotere Dismissal for Failure to Serve
We blogged a lot about the Taxotere MDL. From Lone Pine orders to denials of motions to amend in remand cases, we reported on some pretty good decisions. The MDL court also dismissed a number of plaintiffs who failed to make timely service on the defendants, which we blogged about here and here. Today’s decision addresses a plaintiff who appealed her dismissal for failing to make timely service. Reeder v. Hospira, Inc. (In re Taxotere Docetaxel Prods. Liab. Litig.), 2025 U.S. App. LEXIS 4735 (5th Cir. Mar. 6, 2025).Continue Reading Fifth Circuit Affirms Taxotere Dismissal for Failure to Serve
Holding Companies Not Liable for Acts of Subsidiary
Happy Valentine’s Day. Today’s decision is about a rather un-romantic topic—holding companies. But that got us thinking about a lesser-known band out of San Francisco called Big Brother and the Holding Company. One of America’s most iconic vocalists got her start with the band. Big Brother and the Holding Company’s second album, Cheap Thrills, reached
Himes Makes a Sneak Appearance on the East Coast
We write a lot about the learned intermediary rule. There are 50 state surveys and summaries of helpful decisions, as well as numerous posts on state-specific decisions. We tracked the development of the rule in jurisdictions like West Virginia and Arizona, and we’ve generally been pleased to report positive developments. At the end of 2024, though, we flagged the Himes case from California as one of the ten worst decisions of the year based on its novel approach to warnings causation. Given our criticisms of Himes, we found it both bizarre and troubling to see the case cited recently by an MDL court in Massachusetts applying Pennsylvania law. Our colleagues in the plaintiffs’ bar are clearly advocating to expand Himes into other jurisdictions, and the defense bar should be ready to counter those efforts.Continue Reading Himes Makes a Sneak Appearance on the East Coast
Jingle Jangle, California OTC Preemption
It’s the holiday season, and we’re getting in the festive spirit. We like old-school jingle in our jangle (even though that’s not necessarily holiday themed), more recent, unquestionably holiday-focused jingle jangle, and even first-gift of Christmas jingle, But there may be nothing more festive than a rock-solid preemption win—particularly one from California. We think this one will put a spring in your step and a sparkle in your smile. Continue Reading Jingle Jangle, California OTC Preemption
Package Inserts Are Not Admissible to Establish Standard of Care
We consistently defend the ability of physicians to engage in off-label use. Bexis helped lay the scholarly foundation for courts to utilize the term “off label use,” and two of his law review articles remain go-to reads on the subject. Not surprisingly, we follow medical malpractice decisions that address off label use. Back in 2009, Mark Herrmann (the Blog’s co-founder with Bexis), published a law review article articulating the reasons why package inserts should not be admitted as standard of care evidence in medical malpractice actions. More recently, we wrote a comprehensive post collecting case law rejecting the admission of package insert evidence to establish a violation of the standard of care by physicians who used drugs or devices off label. Today’s case is a detailed opinion from the Iowa Supreme Court joining what is now the majority view—that package inserts should not be admitted as substantive evidence of the standard of care.Continue Reading Package Inserts Are Not Admissible to Establish Standard of Care
Another Blood and Tissue Statute Win
This has been a big year for blood and tissue statute decisions. Given their subject matter, we’ve previously lamented that the decisions didn’t fall closer to Halloween. While not quite coinciding with our doorbells ringing and handing out candy to the little ones, today’s decision is close enough for a little seasonal digression.Continue Reading Another Blood and Tissue Statute Win
Litigation Funding Discovery from Secondary Payor Troll
If you’ve been practicing in mass torts for any length of time, you’ve probably dealt with MSP Recovery. We’ve posted about this Medicare Secondary Payor Troll many times (most recently here). One of MSP’s typical litigation approaches is to claim it has assignments of rights from certain Medicare Advantage Plans and then assert claims
Litigation Funding Agreements Discoverable in Delaware
We’ve all heard that “what’s good for the goose is good for the gander.” Some of us describe it as “the rule of poultry equivalents.” However you phrase it, we’ve always thought that if a defendant’s insurance is routinely discoverable, a plaintiff’s litigation financing agreement should be as well. Today’s decision from Delaware, Burkhart v. Genworth Financial, Inc., 2024 WL 3888109 (Del. Ch. Aug. 21, 2024), isn’t a pharmaceutical or medical device case, but it is the fourth decision out of the Delaware state courts holding that a plaintiff’s litigation funding agreement is discoverable. The decision adds to some of the positive case law and local rules related to litigation funding that we’ve addressed here, here and here. Continue Reading Litigation Funding Agreements Discoverable in Delaware