Last year, the federal court decision to exclude plaintiffs’ general causation expert in the In re: Onglyza and Kombiglyze XR Products Liability Litigation, MDL 2809 (E.D. Ken.),took a spot in our top ten best of 2022 (original post on that decision here). Without a general causation expert, it is not surprising that summary judgement
District of Utah Recognizes Product Liability “Big Three”
When this blogger thinks about the “Big Three” her mind goes to This is Us – Kevin, Kate and Randall. Admittedly, that’s not the only “Big Three.” Most people probably go to Great Britain, the United States, and the Soviet Union in World War II. But that alliance certainly was shorter than the Pearsons. Now
Context Is King — At Least for Labeling Cases in New York
We know the real quote attributable to Bill Gates is “content is king,” But as communications continue to become shorter and more compressed, context can get lost in the shuffle; and context as much as content, drives our knowledge and interactions. So, when the court in Henry v. Nissin Foods (U.S.A.) Co., opined that
Western District of New York Gives Plaintiff Fourth Try to Plead Her Claims
Second chances, sure. Two bites at the apple, we see it all the time. Three strikes before you are out, fairly common. But a fourth amended complaint to cure basic pleading deficiencies? That seems overly generous by any standards. Well, almost any standards because that is what plaintiff got in Greenwood v. Arthrex, Inc.
What’s In a Name? A Lot When It Comes to Specific Personal Jurisdiction
Today’s message is a reminder that specific personal jurisdiction is just that – both specific and personal. That means plaintiffs can’t group plead their way around personal jurisdiction lumping parents and subsidiaries together. Plaintiffs must identify each defendant’s individual role in causing the alleged harm. If plaintiffs seek to impute the jurisdictional contacts of one
An Example of Rule 702 Misapplication
Just last week we updated our discussion on the 2023 amendments to Rule 702 urging our readers to start using the amendments now before their official implementation in December. That’s because the Report of the Rules Advisory Committee confirms that the change to Rule 702 is to correct the mistakes of those courts who have
Generic Drugs Remain Generic Drugs Even When Brand Name Drugs Leave the Market
That seems like it should be an obvious statement. FDA regulations draw important distinctions between brand drugs and generic drugs. A manufacturer seeking FDA approval of a new drug must prove safety and efficacy involving expensive and lengthy clinical trials. Once approved, that drug becomes the reference list drug. If a manufacture wants to market
A Two-fer Tuesday Win–Personal Jurisdiction and Preemption
Last year we wrote a post about Froman v. Coopersurgical, Inc., 2022 US Dist LEXIS 120725, *2-3 (N.D.AL Jul. 8, 2022), calling it trifecta Tuesday because the case was dismissed on the grounds of personal jurisdiction, pleadings deficiencies, and preemption. Today’s case involves the same product, the same defendants, and the same conclusions on
Wisconsin Warnings Decision Leaves Us Woeful
When is a warning not a warning? Apparently when it’s given in Wisconsin. Here are the facts which led to the denial of summary judgment in Platten v. Dean Health Plan, 2023 WL 1820994 (E.D. Wis. Feb. 8, 2023). Plaintiff had hip replacement surgery in 2011 with a ceramic-on-ceramic hip replacement system. In 2017
Good Prescriber Testimony Plus Bad Expert Testimony Equals Another One-Two Punch
For many years, the “one-two punch” was our affectionate label for post-Mensing cases that prevent innovator liability and preempt generic liability. But it’s been several years since we’ve used the expression this way because it was so effective in knocking out those cases, we just aren’t seeing them like we used to.