Plaintiffs in (mostly) prescription drug cases have tried, with decreasing success, to limit the scope of implied impossibility preemption under the Mensing/Bartlett line of supreme court precedent to generic drugs. It’s not a particularly satisfying rationale, but the simple claim that “those were generic drug cases” did at least convince some courts that
Viewing Buckman as a Logical Contradiction Decision
As we mentioned in our recent Preemption Teaser post, last month’s concurrence in denial of certiorari in Lipschultz v. Charter Advanced Services (MN), LLC, ___ S. Ct. ___, 2019 WL 5300908 (U.S. Oct. 21, 2019), provides an indication that, at least to some extent, Justice Thomas might have found a kindred spirit of sorts
Supreme Court Preemption Teaser
It wasn’t an opinion, or a grant of certiorari, but it may be important nonetheless. In a concurrence in the denial of certiorari the other day, Justices Thomas and Gorsuch expounded on their view of how preemption works (or doesn’t work) in the context of a decision by a federal agency (not the FDA
Redistribute This!
Back in 2012, we published our “Distribute This!” post about In re Fosamax (Alendronate Sodium) Products Liability Litigation (No. II), 2012 WL 181411 (D.N.J. Jan. 17, 2012), lauding its ruling that, under the “independence principle” of PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011), and Mutual Pharmaceutical Co. v. Bartlett,
Shameless Plug: Reed Smith Life Sciences CLE Day
Reed Smith’s annual Life Sciences CLE Day will be presented this year, live in Reed Smith’s Philadelphia office and via videoconference to our Pittsburgh office on Thursday, November 7. This is a free, full-day CLE program designed for in-house counsel at life sciences companies.
Bexis will be covering “That Was the Year That Was: Progress
The Latest on Personal Jurisdiction and Class Actions
Bexis updated the Blog’s Personal Jurisdiction Cheat Sheet recently, with the able assistance of Reed Smith associate Kevin Hara. Having just read stories about oral arguments in a the first couple appellate cases concerning application of Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), Due Process principles to class actions,
Ninth Circuit Says “No” to Res Ipsa-Based Parallel Claims
In a significant PMA preemption win, the Ninth Circuit rejected a plaintiff’s attempt, in a breast implant case, to base a “parallel” violation claim on nothing more than a res ipsa loquitur inference. Weber v. Allergan, Inc., ___ F.3d ___, 2019 WL 5090757 (9th Cir. Oct. 11, 2019). Weber involved a Class III breast
“ALI” Should Not Mean “Always Liability Increases” – Apportionment Misadventures
For several years, Bexis has served as an Advisor to the American Law Institute’s (“ALI”) Third Restatement of Torts, Intentional Torts to Persons project. These things, by their nature, take a long time, but this particular project is drawing to a close. Unfortunately, however, the last part of the last section of the last draft
Following More Than Just Money
In our How Not To Create an “Exception” to the Learned Intermediary Rule post two years ago, we criticized a couple of Texas trial court cases for attempting to create a company compensation exception to the learned intermediary rule, that prior decisions had almost universally rejected. That post includes a comprehensive discussion of nationwide precedent
Stupid Expert Fees
This post is a follow-up of sorts to our “Stupid Expert Tricks” post. That post dealt with dodgy games that our opponents’ experts play. This post is about adding injury to insult, that is, when the plaintiffs try to make us pay for the privilege of dealing with those tricks.
Now both our