Calling children of the 70s! Those of you who were introduced to the Muppets on Sesame Street and who know Mr. Hooper, Bob, and Maria. Those who when they hear “one of these things is not like the others” know the rest of the lyrics are “one of these things doesn’t belong. Can
Medical Monitoring Plaintiffs Can’t Dodge Causation Discovery
Discovery is not a one-way street. Most plaintiffs concede that much. But they push hard to make defendants travel down a super-highway while traffic from plaintiffs bumps along an unpaved country lane. The truth is that it will never be an even playing field in drug and device litigation, or any corporate litigation. Defendants are
Sometimes Less is Just Less, or Nothing At All
None of our regular bloggers are solo practitioners. And we’ve all been practicing for quite some time. So, it is fair to stay that we’ve all had ample opportunity to offer writing advice to more junior lawyers. Know your audience. Use active voice. Stop using legalese. Avoid redundancy. And be direct and concise. Which
Lone Pine Stands Tall in Zostavax MDL — Part 3
It has been almost exactly one year since we brought you Part 2 of this Lone Pine story; so, like the court in its most recent decision, we’ll give you a little refresher. The Zostavax MDL in its fifth year. Plaintiffs allege that defendants’ anti-shingles vaccine caused them various injuries including shingles, hearing loss, and
E.D. Louisiana Tells Plaintiff a Warning Letter and a Recall are Not Enough
The Fifth Circuit gave the plaintiff in Bruno v. Biomet, Inc., 2023 U.S. Dist. LEXIS 213826 (E.D. La. Dec. 1, 2023) a second chance, but it was short lived. This case had been dismissed on statute of limitations grounds. On appeal, the Fifth Circuit reversed that holding and remanded the case for the district
A Difference of Opinion is Not a Misrepresentation
So says the Fifth Circuit in Torrey v. Infectious Diseases Society of America, — F.4th –, 2023 WL 7890067 (5th Cir. Nov. 16, 2023). Which joins the Second and Third Circuits in protecting scientific free speech. Cases we discussed here and here and which support our firm belief that scientific articles are “core”
No Medical Device Exemptions to Texas Statute of Repose
It’s a short week, so we are going to do a short post about a short decision on a product that lasted a long time.
An inferior vena cava (“IVC”) filter was implanted in plaintiff in 2004. Some years later she experienced a complication, not identified in the decision, which led her to file a
Learned Intermediary Testimony Sinks Causation in California
Today’s case is about a very unfortunate set of circumstances. A woman who suffered from bipolar disorder and who was not trying to get pregnant did in fact become pregnant two months after being prescribed a mood stabilizer that carried a black box warning regarding birth defects. Fisher v. Abott Labs, 2023 U.S. Dist.
Plaintiff’s Expert’s “Gut” Feeling Not Enough to Withstand Rule 702 or Summary Judgment
Listen to your gut. Follow your instincts. Trust your intuition. Great advice in many situations. Like deciding whether to buy skinny jeans or whether to buy your forever home. Or, when things seem “off” or feel “dangerous.” Or, when your body is trying to tell you something about your health. These are all times to
S.D. Alabama Puts Surgeons Before Sales Representatives
Plaintiffs love sales representatives. They love to use them to try to keep cases in state court—naming them as non-diverse defendants. They love to try to use them to get around preemption—claiming a direct duty from the rep to the plaintiff. And they certainly love making sales representative statements and conduct a focal point of