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Happy new year, and welcome to 2026. While we may still be pondering the meaning of auld lang syne or waxing philosophical about the new year, we’ll quickly move on  and get to work defending our clients. That’s what we do as defense hacks, and kudos to all of you for doing it so well.

We’ve written many times about plaintiffs who try (and fail) to plead injury by alleging hypothetical risks, speculative future harm, or buyer’s remorse untethered to actual loss. Today’s dismissal of a putative class action from the Northern District of California is a new year’s reminder that Article III and statutory standing remain stubbornly real requirements.  Druzgalski v. CVS Health Corp., 2025 U.S. Dist. LEXIS 265766 (C.D. Cal. Dec. 23, 2025).Continue Reading New Year, Same Old Standing Problems

As we head into the longest night of the year, we wade into an MDL decision addressing fraudulent misjoinder.  We previously posted about some unfavorable happenings in the Philips CPAP MDL, and today’s decision continues that unfortunate trend. In re Philips Recalled CPAP, Bi-Level PAP, & Mechanical Ventilator Products Litigation, 2025 WL 3534807 (W.D. Pa. Dec. 10, 2025). But as we reach the winter solstice this weekend, we know that the days will get longer, the sun will shine brighter, and we’re sure to see some positive developments more to our liking.

The decision involves the unusual combination of medical device and environmental exposure claims against different defendants. The complaint alleged that exposure to ethylene oxide through a CPAP device caused plaintiff’s acute myeloid leukemia and, ultimately, death.  But the complaint also claimed that the plaintiff lived near a manufacturing facility that emitted ethylene oxide, and that exposure to those emissions contributed to the development of the disease and death.  The CPAP defendant was diverse; the environmental emissions defendants were not.  Philips (the diverse, CPAP defendant) removed and claimed the defendants in the environmental claims were fraudulently misjoined.Continue Reading Even the Darkest Night Will End and the Sun Will Rise

A few months ago we posted about how the Supreme Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) held up against challenges to COVID-19 vaccine mandates.  The decision—which upheld a smallpox vaccination order over 100 years ago—has fared very well. Jacobson’s recognition that “society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy” applies today as much as it did in 1905. Id. at 26.  Today’s post addresses another COVID-19 decision relying on Jacobson to uphold vaccine mandates instituted for healthcare workers.  Continue Reading Jacobson Remains Solid: Ninth Circuit Upholds Vaccine Mandate

As we’ve discussed before, Florida’s offer of judgment statute has real teeth. Under the Florida statute (Fla. Stat. § 768.79), a defendant can recover its costs and attorney’s fees if the other side rejects the offer and ultimately recovers 25% less than the amount of the offer.  The risk of paying the defendant’s attorney’s fees ought to be a meaningful deterrent to meritless claims.

In today’s decision, Jacob v. Mentor Worldwide LLP, 2025 WL 3134227 (M.D. Fla. Nov. 7, 2025) (rep. & rec.), the defendant made an offer of judgment under the Florida statute. But that didn’t deter the pro se plaintiff from pursuing her claim that a ruptured breast implant caused her to develop lupus-like symptoms.  As we blogged about here, following a lengthy and tumultuous procedural history, the defendant ultimately prevailed on summary judgment.  Prior to moving for summary judgment, the defendant made an offer of judgment of $3,500, which was the amount of its limited warranty for implant ruptures. After obtaining summary judgment, the defendant moved for its costs and attorney’s fees.    Continue Reading Chomp Chomp – Taking a Bite with Florida’s Offer of Judgment Statute

We’ve blogged a lot recently about preemption and the dismissal of complaints alleging that certain over the counter products, including acne medications, sunscreens, antiperspirants, expectorants, and shampoos contain benzene.  Almost a year ago we blogged about the dismissal of an OTC case involving medicated shampoo that allowed plaintiff leave to amend. Today’s decision, Pineda v. Lake Consumer Products, Inc., 2025 WL 2698991 (E.D. Pa. Sept. 22, 2025), is a mixed bag that addresses plaintiff’s amended complaint. It’s about coal-tar shampoos, which are known to include benzene and are subject to an FDA monograph that recognizes the naturally occurring presence of benzene in coal tar. Yet, shockingly, plaintiff filed a class action claiming she would not have purchased the shampoos had she known they contained benzene.Continue Reading OTC Preemption Letdown in the Eastern District of Pennsylvania

We previously blogged about the bogus “scientific” articles in the cosmetic talcum powder litigation and the defendant’s relentless efforts to expose the likely fraud. Prior posts are here, here and here.  If you do not recall the ongoing saga, here’s the quick refresher. Plaintiffs’ paid experts in the talc litigation published two articles that purported to study groups of individuals whose only potential asbestos exposures involved talcum powder. Those “studies” were based on plaintiffs in litigation where the authors served as experts. The defendant discovered that several of the subjects in the articles were plaintiffs in ongoing cases, and the defendant knew from those cases that certain subjects had numerous, potential exposures to asbestos other than talcum powder—thus undercutting the entire foundation of the articles.  The defendant aggressively sought discovery about the study subjects’ identities and filed trade libel lawsuits against the authors.

Today’s decision, Moline v. Pecos River Talc LLC, 2025 WL 2898086 (S.D.N.Y. Oct. 10, 2025), involves a motion to quash a subpoena issued to Dr. Jacqueline Moline (who authored one of the papers) by Pecos River in the trade libel lawsuit brought against the other authors, Pecos River Talc LLC v. Emory et al., No. 4:24-cv-75 (E.D. Va.) (Pecos River was the entity created as part of Johnson & Johnson’s effort to resolve the talc-related claims through bankruptcy).  We’ll call the defendants in that case the Emory defendants.Continue Reading Plaintiff Talc Expert Must Give Deposition Testimony in Trade Libel Lawsuit

We’ve been defending drug and device litigation for a long time, and we’ve seen many plaintiffs who experienced real injuries. Those of us at the blog, our colleagues at other defense firms, and our clients are genuinely sympathetic to injuries a plaintiff actually experienced. Many plaintiffs we’ve encountered also endured terrible circumstances earlier in their lives. Some of those can be heartbreaking. Defending cases on the basis that our clients’ products did not cause the injury or that the injury was a known and warned of risk doesn’t mean the defense bar looks askance at plaintiffs and their experiences.  But, when we see a case involving a syringe needle purportedly propelled into a plaintiff’s derrière, some of us might exhibit a moment of minor moral weakness and include the above title in a blog post. Mea culpa.

Today’s case, Rudzinskas v. Retractable Techs., Inc., 2025 U.S. Dist. LEXIS 191860 (S.D. Ga. Sept. 29, 2025), involves a type of syringe that automatically retracts once the plunger handle is fully depressed.  Plaintiff’s husband regularly administered vitamin B-12 shots to her and had been doing so for six or seven years. Plaintiff claimed that, on one of those occasions, the needle from defendant’s syringe “shot into [her] like a slingshot.” Id. at *4.  Plaintiff went to the hospital and an ultrasound suggested the needle was embedded in the plaintiff’s buttock. Plaintiff underwent surgery to have the needle removed, but the surgeon was not able to extract it. Continue Reading A Real Pain in the  . . .

The title of today’s post is from a quote by Justice Holmes in a dissenting opinion, Abrams v. United States, 250 U.S. 616, 630 (1919).  Abrams involved a conviction under the Espionage Act based on the publication of leaflets that were distributed in New York during World War I. Among other things, the leaflets denounced President Wilson as a hypocrite and a coward, and lamented the “hypocrisy of the plutocratic gang in Washington and vicinity.” Id. at 620.  In his dissent (joined by Justice Brandeis), Justice Holmes espoused the power of free speech in connection with our country’s experiment with its Constitution. Or, as Justice Holmes more eloquently put it: “It is an experiment. All life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system[,] I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death . . . .” Id. at 630.Continue Reading The Best Test of Truth Is the Power of the Thought to Get Itself Accepted in the Competition of the Market

Our readership is tuned into current events and stays up to date on significant drug and device litigation.  We bet no one missed that Taylor and Travis are getting married, or that a college football game being hyped as the biggest regular season game in at least a decade (Texas v. Ohio St.) happens tomorrow.  We also bet that the blog’s readers know what GLP-1 inhibitors are—medications developed for diabetes and now widely prescribed for weight loss.  At least one poll estimated that 12% of the U.S. population has taken a GLP-1 medication.

About a year ago, we posted about the successful efforts of the defendants in the GLP-1 MDL to have the court, rather than permitting unfettered discovery at the outset, instead tee-up certain “cross-cutting” issues that would impact the scope of the MDL. Yesterday we posted about the MDL court’s ruling on preemption of the plaintiffs’ design defect claims. Today we address a separate decision addressing the admissibility of expert testimony on a cross-cutting issue.  In re Glucagon-Like Peptide-1 Receptor Agonists Prods. Liab. Litig., MDL No. 3094, 2025 WL 2396801 (E.D. Pa. Aug. 15, 2025).Continue Reading Trimming Down the GLP-1 MDL

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn more about this book