The recent law review article by the always interesting and extremely prolific Lars Noah, “‘Market Shift Liability’ for Generic Drugs: Market Share Theory’s Eccentric New Cousin,” 13 Tex. A&M L. Rev. 1415 (Spring 2026), warrants discussion. We usually agree with Prof. Noah, but we don’t buy the central premise of the article: that innovator liability
“Pilot Trials” – the Latest Atextual MDL Proposal
Some of us are on the mailing list of the Rabiej Litigation Law Center. Recently, we received an email entitled “Rare Mass-Tort MDL Consensus Among Opposing Counsel & Judges.” Since such a broad consensus is indeed “rare,” we read the email. Apparently, a recent conference resulted in “a rare consensus: holding ‘pilot trials’ very
Beyond Mere Disclosure – Ohio Regulates Third-Party Litigation Funding
None of the Pelvic Mesh Litigation shenanigans – criminal and otherwise – that were graphically described in Elizabeth Chamblee Burch’s recent book, The Pain Brokers (One Signal Publishers 2026), which we reviewed here, could have happened without somebody footing the bill. Those somebodies were – and are in most, if not all, mass
Plaintiffs Go 0-2 with High-Profile Loper Bright Arguments
Shortly after the Supreme Court decided Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), we predicted that that the other side would attempt to use that decision “for nefarious purposes.” We chronicled their first, “meat-axe” attempt here, where MDL plaintiffs argued that Loper Bright somehow abolished implied preemption in tort cases altogether.
The Continuing Demise of Market Share Liability
We published a 50-state survey on the widespread rejection of so-called market share liability back 2010, which we recently referenced in our post celebrating the demise of an “ultra processed” food strike suit in Pennsylvania. As that post discussed, one of the liability theories that failed was market share liability. That got us thinking that
Recent FDA Development Warrants Revisiting Tampon Preemption
[T]esting conducted by FDA laboratories and a toxicological risk assessment related to metals found in tampons . . . found that, while trace metals are present in
A British Hi-Tech Response to a Hi-Tech Problem
Novo Nordisk A/S v. British Telecommunications Plc, 2026 WL 01791875 (Ch. Div. June 23, 2026), is the first judicial decision from the United Kingdom that we have featured on the Blog. The high-tech solution that the court approved for combating proliferating fly-by-night websites that “in one way or another were involved in the sale
DiToto Is a Total Mess
Our initial inclination was not to blog about DiToto v. Nevro Corp., 2026 WL 1425041 (D. Md. May 21, 2026), given that it was an adverse, poorly reasoned trial court level decision. But then we received an updated citation indicating that – for reasons that totally escape us – Thompson-Reuters/West had decided to publish
Medical Monitoring and the Limits to Equity
We recently became aware of a legal podcast comment about the incompatibility of medical monitoring claims and the availability of equitable relief (at least in federal court) under Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999).
Whodawhat?
That was our initial reaction. But we took a look anyway
New WLF Paper on the First Amendment as a Defense to Public Nuisance
We first learned of the Washington Legal Foundations (“WLF”) back in the 1990s, when Bexis collaborated with WLF in pursuing what was then viewed as a rather radical proposition – that the First Amendment applied to FDA and other governmental constraints on off-label promotion of FDA regulated products. Eventually, the Supreme Court specifically held that