Is what the court finally had to tell plaintiff in Roshkovan v. Bristol-Myers Squibb Co., 2023 U.S. Dist. LEXIS 166742 (C.D. Cal. Sep. 19, 2023) in dismissing his second amended complaint as both preempted and inadequately pleaded. We posted about the dismissals of the original and first amended complaints on the same grounds here
More Food Labeling Claims Preempted
We know this is the Drug and Device Law Blog, but the similarities between food labeling preemption and medical device preemption are just too strong for us to pass up. In both contexts, the FDCA has express preemption provisions. The Medical Device Amendments to the FDCA, prohibit any state law or regulation “which is different
Plaintiff’s Expert Doesn’t Measure Up
If a court tells you your only non-preempted claim is one based on a theory that your labeling does not comply with the Federal Food, Drug & Cosmetic Act (“FDCA”), it’s probably a good idea for your expert so opine. Opting instead for expert testimony based on a consumer’s perspective is risky and likely problematic.
Conspiracy Allegations Not Enough to Keep Barebones Complaint Alive in California
Plaintiff in Gurule v. Boston Scientific Corp., 2023 Cal. Super. LEXIS 49321 (Cal. Super. Jul. 18, 2023), tried to pull off a little magic through misdirection, but couldn’t fool the court. Plaintiff tried to distract the court from the complete lack of sufficient allegations to satisfy even notice pleading requirements by alleging an elaborate
Good Venue Ruling in Missouri, With a Word of Caution on Timeliness
St. Louis City courts have long been considered among the most pro-plaintiff in the country and for years litigation tourists flocked there using multi-plaintiff complaints with a single city resident to secure the venue. Then the world changed in 2019. The Missouri Supreme Court decided State ex rel. Johnson & Johnson v. Burlison, 567
Advances in Videoconferencing Do Not Change the Subpoena Power of the Court
Federal Rule of Civil Procedure 45(c) is straightforward: a district court has the power to compel a witness to testify at trial if the trial takes place
“Shaky Foundation” Brings Down Failure to Report Claim in Pennsylvania
Sometimes we read an opinion and think to ourselves, we couldn’t have said it better ourselves. That is true of the analysis of failure to report claims in McGee v. Johnson & Johnson, 2023 WL 4765454 (W.D. Pa. Jul. 26, 2023). We’ve been railing against Stengel v. Medtronic, Inc., 704 F.3d 1224 (9th
In re BHR MDL Identity Crisis
The In re Smith & Nephew Birmingham Hip Resurfacing Hip Implant Products Liability Litigation MDL (“In re BHR MDL”) has disappointed us in the past with its early decisions on preemption, but had rebounded in its summary judgment rulings on individual bellwether cases. Unfortunately, when asked to apply that individual case analysis to a
PMA Preemption Guts Ohio Case Down to Narrow Failure to Warn Claim
As evidenced by our PMA Preemption Score Card, on which today’s case became the 651st entry, defendant manufacturers of FDA-approved Class III medical devices generally do pretty well with preemption motions. But plaintiffs keep filing PMA medical device complaints, so we’ll keep posting about them.
Which brings us to today’s case, Arnold v.
Revision Surgery Starts the Clock for Statute of Limitations
We don’t usually blog about statute of limitations cases because the issues tend be state and fact specific. But Boyd v. Allergan PLC, 2023 U.S. Dist. LEXIS 115779 (D. Org. Jul. 6, 2023) addresses a fact situation we see repeated often enough in medical device cases that we thought it was worth reporting on.