Most of the controversy in the recent decision, Hill v. Bayer Corp., 2020 WL 5367334 (E.D. Mich. Sept. 8, 2020), revolved around whether the plaintiff could assert a cause of action for failure to report adverse product events to the FDA. Like the great majority of decisions (particularly since Conklin v. Medtronic, Inc.,
Updating Our Ediscovery for Defendants Cheat Sheet
This post was actually written by Bexis. His password expired over the weekend and he found himself locked out, so we have posted it for him:
It’s been a while. We have updated our cheat sheet devoted to ediscovery for defendants differently than most of our other cheat sheets and scorecards. The topic of discovery
Chasing the Rainbow with a Sham Affidavit
Here is another post by our blogger in training, Dean Balaes. This time he explores an interesting decision that applied the “sham affidavit” doctrine to defeat an all-too-common P-side deposition tactic, last minute leading questions (often when the defense has no time for re-cross) designed to generate self-serving answers that contradict prior damaging testimony.
We Repeat – No Second-Guessing the FDA
Not too long ago we researched and posted about how preemption precludes private plaintiffs from second-guessing FDA decisions on the marketing and classification of the products the Agency regulates. Looking through that post again, we note that quite a few of those decisions (although well less than half) involved commercial disputes of one sort or
Something Both Sides Should Agree On
We’ll be very clear – as we have before: We don’t like most class actions. Indeed, if given our druthers, we would abolish Rule 23, as it applies to class actions for damages, altogether. But that’s not in the offing anytime soon. Today, we offer a class action decision that we think both sides, us
Another Vaccine-Related Blogpost
Not quite two months ago, the Dept. of HHS published a notice of proposed rulemaking that would make a significant change in the National Vaccine Injury Compensation program. See 85 Fed. Reg. 43,791 (HHS July 20, 2020). If this becomes a final rule, it could affect the prevalence of civil litigation involving vaccines.
HHS seeks
Pleasing Pennsylvania PMA Preemption Proceeding
Defendant manufacturers of FDA-approved Class III medical devices generally do pretty well with preemption motions, as our PMA Preemption Score Card (now with well over 500 decisions) demonstrates. Conley v. St. Jude Medical, LLC, ___ F. Supp.3d ___, 2020 WL 5087889 (M.D. Pa. Aug. 28, 2020), is one of these, but some aspects of
Update from the Front
Not long ago we brought you a report from the False Claims Act (“FCA”) front on how the government was doing with its attempts to prune back some of the worst abuses of FCA litigation – particularly the advent of “professional relators.” In that earlier post, we discussed the two major approaches that courts
Quasi-Guest Post – Embracing Remote Depositions for the Foreseeable COVID-19 Future
What follows is another “guest post” by our blogger-in-training Dean Balaes. This one concerns remote corporate Rule 30(b)(6) depositions and a recent decision addressing them.
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In many respects, COVID-19 has created (to use the overused term) a new normal for the legal profession. When California became the first state to issue a stay-at-home order
On MDL Choice Of Circuits
It’s hard to believe, but fully five months after COVID-19 was officially declared to be a “pandemic,” it’s still extraordinarily difficult to get oneself tested – particularly if one is not already sick or exposed. Maine has been one of the most successful states in reducing the virus’ spread, with the third lowest rate of