We might not have even read the Supreme Court’s recent – and long and convoluted − agency deference decision, Kisor v. Wilkie, ___ S. Ct. ___, 2019 WL 2605554 (U.S. June 26, 2019), except that it tripped several of our automatic searches by citing both Riegel v. Medtronic, Inc., 552 U.S. 312 (2008),
More Confirming Than Surprising − CMS DTC Drug Pricing Diktat Fails in Court
We’ll get right to the point. In Merck & Co. v. United States Department of HHS, ___ F. Supp.3d ___, 2019 WL 2931591 (D.D.C. July 8, 2019), the court held that the direct-to-consumer pricing regulation proposed by the Centers for Medicare & Medicaid Services (“CMS”) – on which we’ve commented here, and here
Guest Post – Stop the Presses – Supreme Court Decides a Dormant Commerce Clause Case
Today’s guest post is by Tucker Ellis‘ Dick Dean, a longtime friend of the blog and outspoken advocate of using the Dormant Commerce Clause as a one-two punch in certain personal jurisdiction situations. This is his latest update on Dormant Commerce Clause developments. As always, our guest posters are 100% responsible for their
How Does Vagueness Affect Negligence Per Se Claims?
We’ve mentioned before that negligence per se requires a claimed violation of a definite enactment – like a 70 mile per hour speed limit – that can substitute for the ordinary negligence “reasonable man” standard. However, we’ve never really studied it closely. Because negligence per se seems to be flowing rather than ebbing in prescription
Ediscovery for Defendants in Practice
We’ve repeatedly advocated that defendants try turn the e-discovery tables on plaintiffs whenever possible – particularly in MDLs where discovery is flagrantly one-sided – by going after plaintiffs’ social media information. In just about every case involving allegations of personal injuries, social media will have admissions by plaintiffs concerning their conditions and activities that concern
Perhaps Another Supreme Court Preemption Case?
It hasn’t happened yet, but just as the Supreme Court originally did with Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), the Court issued an order on June 24, asking for the Solicitor General’s views in Avco Corp. v. Sikkelee, No. 18-1140. The Order is on SCOTUSBlog, here
Hauled from the Deep End? New (and One Old) Developments in Pennsylvania Personal Jurisdiction
First, we apologize to our readers for not publishing this post earlier. It contains new information that we’ve known about for a couple of weeks, but we felt we had to keep it under wraps temporarily until Bexis filed an amicus curiae brief (last Friday) in one of the cases we discuss. Just as we
Mass Tort Litigation Funder Indicted in Pelvic Mesh Litigation
We’ve blogged a number of times about how litigation funding arrangements involving personal injuries and mass torts collide with various ethical and statutory obligations owed by either the funders or the lawyers they fund. These all involve United States litigation. But when the New York Times reported on the questionable funding arrangements that have occurred
Shut the Door on Punitive Damages “Experts”
We know of only a couple of cases that have allowed “experts” to testify on the subject of punitive damages. First, in the Actos litigation, the court allowed a so-called “ability to pay” expert opinion to be presented to the jury. In re Actos (Pioglitazone) Products Liability Litigation, 2013 WL 6383104, at *5 (W.D.
Guest Post − How Much Is Too Much Deference To FDA Warning Letters in Consumer Class Actions?
Today’s guest post is by Camille L. Fletcher and Joshua Kipnees, both with Patterson Belknap. We actually sought out this guest post, which is rare. We first saw it on one of Patterson’s in-house firm blogs, and it was one of those rare law firm posts that did more than describe a