Someone asked us the other day whether spoliation sanctions could lie against a non-party for alleged loss/destruction of electronically stored information sought through a third-party subpoena. On the one hand, assuming there is personal jurisdiction, the substantive discovery rules do not vary between parties and non-litigants subjected to valid subpoenas. On the other hand,
Shameless Plug – CLE Webinar on Best/Worst Cases of 2019
Over the past few weeks, our loyal readers have descended into the “Stygian Depths” and then climbed to the “Elysian Fields” with us as we reviewed the 10 worst and 10 best cases of 2019.
If you found yourself wanting more information on these cases and their impact – perhaps with
The Only Common Issue Is Preemption
We had to shake our heads at the recent 360 story entitled, “Allergan Breast Implant Risk MDL Heading to New Jersey” – the link is here for those of you with a subscription.
The idea of a “risk” MDL seems bizarre. The story involves a particular type of cancer, and states that “four proposed class
No Fourth-Party Payor Liability in New Jersey
In their unending quest to make a plaintiff out of everyone, some creative members from the other side of the “v.” have concocted a claim that we call “fourth-party payor” liability. Regular blog readers are certainly familiar with “third-party payor” actions brought – entirely for economic losses – by insurers, pension funds, and other organizations
Elysian Fields − The Top Ten Best Prescription Drug/Medical Device Decisions of 2019
Welcome to our annual Elysium tour, in which we electronically acknowledge the sweet nectar of victory flowing from the top ten drug/device product liability decisions of the year. It’s time to salute those fortunate decisions that brought the judicial Midas touch to our clients’ cases. We echo what we said last year: “we’re looking
Will Congress Remove Removal Before Service?
As we’ve gleefully chronicled, recently the tide has been running distinctly in our favor on defendants being permitted to remove cases to federal court before plaintiffs – every one of them a non-resident litigation tourist – can serve a so-called “forum defendant” – that is, a completely diverse defendant that is also a resident
Stygian Depths − The Bottom Ten Worst Prescription Drug/Medical Device Decisions of 2019
You know it’s coming. It’s unavoidable, but necessary. We don’t like it any more than you do, but it’s that time of year. Time to recapitulate the worst punishments that the denizens of the you-know-where tort Tartari have inflicted upon our clients and us in 2019. Every year we contemplate our Sisyphean labors facing the
FDA – If You Can’t Beat ‘Em, Join ‘Em
If there has been one regulatory constant over the years, it has been the FDA’s persistent position that off-label promotion is bad and that companies that engage in it are acting illegally. Since we first encountered this agency attitude as relatively young lawyers in the 1990s, we’ve thought that this position was unconstitutional under the
Like Day and Night
Now that federal court pelvic mesh cases no longer disappear into that black hole that was the multidistrict litigation, the difference seems almost like daytime after a long, dark night. Rather than piling up on the docket for years – unreviewed and inert (except for adding to the settlement pressure of large numbers), these complaints
Reptile Research – Avoiding the Snake Pit
We made a statement in our recent Age of Reptiles post concerning the decision, Fitzpatrick v. Wendy’s Old Fashioned Hamburgers, ___ N.E.3d ___, 2019 WL 5792847 (Mass. App. Nov. 7, 2019), that we had to check. We described Fitzpatrick as “the first appellate case we know of that has specifically addressed and declared certain