We’ve blogged about aspects of the Model Drug Dealer Liability Act before. Over 20 states have enacted versions of the model act in an effort to shift liability for harm caused by illegal drugs to the drug dealers and traffickers who sell and promote illegal drug use. Those are not normally the types of claims of interest to our readers. But, given that we’ve been blogging this week about fraudulent and harmful medical procedures and junk science in mass torts, maybe it’s no surprise that today’s decision deals with an attempt to use a version of the model act as a vehicle for finding liability against a major distributor of legitimate, FDA-approved drugs. McKesson Corp. v. Bolton, 2026 WL 394505 (Ga. App. Feb. 12, 2026).
Continue Reading A Drug Dealer? Seriously?
The Zantac Defense Has the Hammer in Delaware
This post is not from the Reed Smith or Dechert sides of the blog.
We hope we’re not the only ones distracted by the Winter Olympics. We’re breathless from Breezy Johnson taking gold in the downhill, Jordan Stoltz emerging as the U.S. speed-skating phenom, Jessie Diggins battling bruised ribs to take bronze in the 10K cross country freestyle, and Ilia Malinin throwing in a back-flip in his skating routine just for kicks—despite it not earning him any points. Not to mention short-track skating, biathlon, luge, moguls, snowboard-cross, bobsledding, the Olympic debut of ski mountaineering, and all kinds of other ski and snowboarding events where the contestants either fly down mountains at cataclysm-embracing speeds or hurl themselves into the stratosphere while contorting themselves in twists and turns that make us dizzy. Combine that competition and athleticism with the Olympic themes of unity and sportsmanship, and you can see why we’ve got Olympic fever.
We were particularly enthralled with the U.S. mixed-double’s curling team. This is from humble bloggers who, other than every four years, have no idea what curling is. But when the Winter Olympics roll around, we’re watching to see who’s dominating the house and who has the hammer. The U.S. mixed doubles team had never taken home a curling medal. This year’s team, Cory Thiesse and Korey Dropkin, absolutely dominated the round robin and earned a spot in the medal round. After a magnificent shot in the last end (like a game winning home run in the bottom of the ninth), the U.S. defeated defending gold-medalist Italy for a chance to play for the gold medal. While “Corey and Korey” ending up taking home silver, it was the first ever medal for the U.S. in mixed curling and the first ever Olympic medal in curling for an American woman. What a run.
One of the curling commentators noted that Korey Dropkin was one of the best sweepers in the game. While it may be a stretch to connect curling to the legal side of these posts, we think it is fair to note that mass torts defendants often engage in years of clean up after securing victories in mass torts. Call it sweeping the house if you will. Case in point is the Zantac litigation. The defendants secured litigation-ending rulings excluding plaintiffs’ general causation experts in the federal MDL (which we posted about here and here). Plaintiffs then fled to Delaware (of all places to see mass torts plaintiffs flocking, we continue to be surprised and disappointed at this trend). The Delaware trial court refused to follow the well-reasoned decisions from the MDL and appeared to give new life to the Zantac litigation (see this post), but the Delaware Supreme Court reversed and remanded with instructions for the trial court to apply Delaware’s Rule 702 consistently with the federal rule (see here).
Continue Reading The Zantac Defense Has the Hammer in DelawarePMA Preemption in the Northern District of Illinois
We previously posted about plaintiffs’ shenanigans in attempting to defeat diversity in a medical device case removed to the Northern District of Illinois. Plaintiffs’ antics were unsuccessful, and the federal court denied plaintiff’s motion remand. Today’s decision addresses the defendants’ motion to dismiss plaintiffs’ third amended complaint in the same case, and it is very favorable from a preemption standpoint. Miller v. Rush University Medical Center, 2026 WL 147413 (N.D. Ill. Jan. 20, 2026).
Miller involves a cervical disc replacement device (the “Mobi-C”). The device includes an accompanying inserter with a “depth stop” mechanism used to prevent the Mobi-C from going too far into the spinal cord during insertion. Plaintiff and his spouse sued the device manufacturer, the distributor, two sales representatives, the hospital, and the treating physician based on claims that he suffered spinal cord contusions during surgery. The defendants moved to dismiss, with the manufacturer and distributor arguing that all claims against them were preempted. The court agreed.
Continue Reading PMA Preemption in the Northern District of IllinoisLearned Intermediary Success at the 12(b) Stage in Alabama (plus a Double Whammy)
We write a lot about the learned intermediary rule. It’s a fundamental aspect of the defense of drug and device cases, it’s grounded in the realities of the physician-patient relationship, and it tends to produce a lot of cases worth blogging about. We also refer to it as a rule (e.g., here, here, here, and here), rather than a doctrine, because that’s what it is. We particularly like it when courts dismiss warnings claims based on the learned intermediary rule at the pleadings stage. Today’s case is one of those. Plaintiff filed a shoddy complaint, was able to amend in response to an initial motion to dismiss, and then saw his warnings claims dismissed with prejudice under Alabama’s learned intermediary rule.
In McCrackin v. Rex Medical L.P., 2026 WL 66797 (N.D. Ala. Jan. 8, 2026), the plaintiff alleged he received an Option retrievable IVC filter in 2012. Twelve years later, he allegedly suffered complications when a “leg” from the filter fractured and penetrated a vein, with the further allegation that his spine grew around the fractured leg. He sued based on allegations that the device was marketed as permanent when it should have been temporary, and that there were not adequate warnings about the risk of “tilt, fracture, migration and/or perforation.” Id. at *1. Plaintiff previously obtained leave to file an amended complaint in response to an initial motion to dismiss, so this was his second bite at the apple. The defendant who marketed and distributed the device moved to dismiss.
New Year, Same Old Standing Problems
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 ProblemsEven the Darkest Night Will End and the Sun Will Rise
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 RiseJacobson Remains Solid: Ninth Circuit Upholds Vaccine Mandate
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 MandateChomp Chomp – Taking a Bite with Florida’s Offer of Judgment Statute
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 StatuteOTC Preemption Letdown in the Eastern District of Pennsylvania
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 PennsylvaniaPlaintiff Talc Expert Must Give Deposition Testimony in Trade Libel Lawsuit
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