We’re product liability bloggers, so we don’t claim to know a lot about other drug-related subjects such as how “Buy American” requirements apply to federal procurement. But we can read, and the Federal Circuit’s unanimous decision in Acetris Health, LLC v. United States, ___ F.3d ___, 2020 WL 610487 (Fed. Cir. Feb. 10, 2020),
Exploring Duty in the Third Restatement of Torts
Mention the Third Restatement of Torts and the learned intermediary rule in the same sentence, and our response would be to cite §6(d) of the product liability part of the Restatement. But the Third Restatement also confirms that this widely followed (perhaps the most widely followed) legal rule also applies to negligence causes of
Ninth Circuit Prohibits Plaintiff’s Bootstrap Class Action Discovery
Mandamus appeals are difficult to win. That’s one reason that we were intrigued to read In re Williams-Sonoma, Inc., ___ F.3d ___, 2020 WL 131360 (9th Cir. Jan. 13, 2020). The second was the result, which prevented an improper would-be class representative from using discovery as a bootstrap method to his own replacement. The
Response/Rebuttal to Plaintiffs’ Albrecht Arguments
Not too long ago, our search keyed to Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (2019), picked up the following article in Trial Magazine: Abaray & Harman, “Navigating Preemption After Merck,” 56 Trial 20 (Jan. 2020). For anybody who doesn’t know, Trial is the house organ of the American
All Not So Quiet on the Midwestern Front – Kaiser Continues String of Mesh Defeats
If asbestos litigation reminds of the 100 Years War, and the Bone Screw litigation recalls (for us) the winning side of the Franco-Prussian War, or Napoleon’s Italian Campaign − pelvic mesh litigation seems like something out of a different war. Try World War I. It’s not quite the Somme (at least not yet) but more
A Couple of Interesting Duty Cases
Bexis was researching an off-label use issue recently and came across a couple of interesting duty cases that happened to appear, back-to-back, in his search results.
The first case, Howard v. Replogle, 450 P.3d 866 (Mont. 2019), grabbed our attention first because in involved instrumented spinal fusion and off-label use. No, it wasn’t an
Remand Denied, but for “Improper,” Not Fraudulent, Joinder
It is not often that we report on the creation of something new in the removal/remand area (ten years ago as to removal before service was one such moment), but today that is what we’re doing.
The decision is Markham v. Ethicon, Inc., C.A. No. 19-5464, ___ F. Supp.3d ___, 2020 WL ______, slip
Plaintiffs Win – The Public Loses
When we were still (relatively) young lawyers, we defended Bendectin cases. There was nothing wrong with Bendectin – the litigation produced Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court’s landmark decision on excluding bogus expert testimony, and numerous other decisions, state and federal, excluding “junk science.” Nonetheless, Bendectin’s primary
Shameless Plug Redux – CLE Webinar on Best/Worst Cases of 2019
Yesterday, Bexis was staring at a weather forecast featuring rain, snow, and freezing temperatures: In other words, a perfect day for sitting inside and finalizing PowerPoint slides further analyzing the worst cases and the best cases of 2019.
As a friendly reminder to our loyal readers, this Friday, January 24 at 12 p.m. EST, four
Breaking News – Supreme Court Personal Jurisdiction Certiorari Grants
Today the Supreme Court agreed to take another shot at “stream of commerce” personal jurisdiction in two automotive cases. Here are the case pages at SCOTUSBlog: Ford Motor Co. v. Bandemer, No. 19-369, and Ford Motor Co. v. Montana Eighth Judicial District Court, No. 19-368. The decisions being appealed are Bandemer