As our guest post predicted in last Monday, even Hurricane Harvey could not delay the Fifth Circuit long in deciding the Pinnacle Hip MDL mandamus petition. Its decision, denying mandamus but mostly agreeing with the defendant’s substantive position, is available here. In re Depuy Orthopaedics, Inc., ___ F.3d ___, 2017 WL 3768923 (5th
Guest Post – Before the Flood: Fifth Circuit Oral Argument on Writ of Mandamus From Pinnacle Hip Implant MDL
Today’s guest post is by Reed Smith Houston office associate Curtis Waldo. Given the Noachic weather down there recently, one might ask “where’s Waldo?” The answer is safe and sound, if not quite high and dry. Curt is really dedicated – we offered him more time, but he said he didn’t need it. In this
Innovator Liability Fails Again
As we discussed at the time, the MDL-wide innovator liability appeals in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), resulted in rulings under more than 20 states’ laws that branded drug manufacturers could not be liable for injuries suffered by plaintiffs who never used their
Guest Post – Design Defect Implied Preemption Is Not Just for Drugs
Today’s guest post is by long-time friend-of-the-blog, Dick Dean, of Tucker Ellis. This post covers the preemption aspects of the recent (after remand from the Third Circuit) aviation decision in Sikkelee v. Avco. If you’re interested in this issue, we heartily commend the actual decision (which, we warn you, is quite lengthy), since
New Favorable Risperdal Decisions
Risperdal, an antipsychotic drug prescribed to treat serious mental conditions – schizophrenia, manic depression, and autism – allegedly causes some male users to develop abnormal breast tissue growth. Particularly when compared to the consequences of the conditions Risperdal is indicated to treat, that seems like a relatively minor risk. It isn’t fatal. It isn’t a
Comment K and Non-Implanted Medical Devices
About two years ago, in our post “How Does a Bad Idea Get Implanted,” we discussed what at the time seemed a California peculiar argument that the “unavoidably unsafe” product doctrine epitomized by Restatement (Second) of Torts §402A, comment k (1965) was somehow limited to implantable – as opposed to non-implantable – medical
How Not To Create an “Exception” to the Learned Intermediary Rule
We’ve heard more about the constitutional “emoluments clause,” Art 1 §9, clause 8, this year than during the entire rest of our legal careers. But while it’s illegal for anybody working for the U.S. government to accept anything of value from a “foreign state,” that doesn’t make it illegal, unethical, or even particularly
Post-BMS Personal Jurisdiction Cheat Sheet
In the wake of the defense wins during the last Supreme Court term in Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017) (“BMS”), and BNSF Railway Co. v. Tyrell, 137 S.Ct. 1549 (2017), we’re retiring the personal jurisdiction cheat sheet we had been maintaining for the last three-plus years
Guest Post – Causation or No Causation, That Is the Question.
Today we feature another guest post from our European correspondents, Reed Smith partner Marilyn Moberg and associate Kathryn Bond. There has been another significant decision from the Court of Justice (its description, not ours) of the European Union, and once again it is bad news for manufacturers of life-saving prescription products – this time vaccines.
Artificial Intelligence and Learned Intermediaries
In the July 7, 2017, “Artificial Intelligence” issue of Science, we were intrigued by a short piece in the “Insights” section on “Artificial Intelligence in Research” that discussed the future use of autonomous robots in surgery. Surgeonless surgery would “allow[] work around the clock with higher productivity, accuracy, and efficiency as well as shorter