Today’s guest post, about a bottom-ten RICO third-party payor action from (no surprise) the Ninth Circuit, is by long-time friend of the blog (and blogger in his own right), Jonah M. Knobler, of Patterson Belknap. We named one similar case, Kaiser Foundation Health Plan, Inc. v. Pfizer, Inc., 712 F.3d
MDL Judge Calls out Plaintiffs’ Counsel − Not Acting in Clients’ Best Interests
Here is an interesting order that recently emerged from the Benicar multi-district litigation. Certain plaintiffs’ counsel (identified by name in the order) represent about 450 “plaintiffs who have settled their claims against defendants in exchange for a monetary payment.” In re Benicar (Olmesartan) Products Liability Litigation, 2019 WL 6271285, at *1 (D.N.J. Nov. 22,
Wrong Court and Wrong-er Reasoning − Ignoring 75 Years of Controlling Precedent
The opinion, Schrecengost v. Coloplast Corp., 2019 WL 6465398 (W.D. Pa. Dec. 2, 2019), recently “predicted” that Pennsylvania would allow strict liability design and warning defect claims in cases involving prescription medical products. Id. at *11-13. In so doing Schrecengost was not only wrong, but loud wrong. First, without even a serious discussion, Schrecengost
A Short Thank You to ALI Members Who Responded to Our Prior Post
We appreciate the emails in support of the position we took in our October 14 post on Apportionment Misadventures that we have received from ALI members. We have just reviewed “Council Draft No. 6,” (we can’t link to it as per ALI guidelines) and are pleased to report that the section we criticized has been
On The Receiving End
We’ve used the phrase “one-two punch” before in the blog to describe a pair of legal decisions concerning the same product. Usually, our clients have been on the winning side, but that’s not always true, particularly in cases coming out of Philadelphia, Pennsylvania. In November, the Pennsylvania appellate courts, in gynecomastia litigation, dealt defendants two
Size Matters
In prescription medical product liability litigation, size matters. It doesn’t matter as much as having good products and winning arguments, but when the name of the game on the other side is to drag defendants into pro-plaintiff forums and then use every procedural trick in the book to try to “ring the bell” on some
Limits to Duty 2.0 − On Product Manufacturers Supervising Doctors
Manufacturers supervising medical doctors? In two words, they don’t. Yet plaintiffs, particularly in cases where preemption forecloses more normal product liability claims, try to get courts to impose such duties. We took a look at that issue back during the early days of the blog, when it was still a Bexis/Herrmann operation, in our September
Allina Comes to Our Neck of the Woods
Last term, in a case that the Blog completely ignored, the Supreme Court held that a provision of the Medicare Act, 42 U.S.C. §1395hh(a)(2), required the Centers for Medicare & Medicaid Services (“CMS”) to subject all Medicare-related determinations “that establish[] or change[] a substantive legal standard” to formal notice-and-comment rulemaking. Such determinations explicitly include (as
Why Erie Is an Inherently Conservative Doctrine
We’ve been backing the proposition that the Erie doctrine concerning federal courts’ prediction of state law precludes courts clothed only with diversity jurisdiction from expanding state tort liability in novel ways since just about the beginning of the Blog. However, our analyses have tended to be forward looking. We typically start with the Supreme Court’s
Another One for the A Fortiori File
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