It has been 23 years since New Jersey adopted a direct-to-consumer advertising exception to the learned intermediary rule. And, as of last week it remains the only state to have done so. Every state has adopted some version of the learned intermediary rule. So, it is saying something that in almost a quarter of a
Choice of Law Nixes Punitive Damages in Remanded Mesh Case
New Jersey ain’t Florida and vice versa. Obviously, it’s warmer in Florida for more of the year and it never gets cold enough to snow. That could be a pro or a con. Florida has the second longest coastline among U.S. States which gives it a greater opportunity to have more highly rated beaches. But
E.D. Virginia Loosens the Reins in Horse Prescription Drug Case
This is a follow-up post on the case of Knapp v. Zoetis, Inc. – an animal drug case. While not our typically fare, it is still a prescription drug case involving adverse event reporting to the FDA and the learned intermediary doctrine. So, while this patient had four legs instead of two, the legal framework
Fourth Circuit Upholds Restrictions on Plaintiff Lawyer Advertising in West Virginia
We want to start by emphasizing the word restrictions. The law at issue in West Virginia was not a ban on plaintiff lawyer advertising, nor could it be. Since Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the First Amendment’s protection of truthful and non-misleading commercial speech extends to lawyers. Lawyers,
Generic Preemption win in New Jersey
Today’s case is a straight warnings case. So, there should be little surprise that if it involves a generic drug preemption shuts it down. But that does not mean that plaintiffs did not try several avenues of attack to try to find a warning claim that would stick. None did.
The case is Roncal v.
Supreme Court To Decide General Jurisdiction By Consent
Yesterday the Supreme Court granted plaintiff’s petition for a writ of certiorari in Mallory v. Norfolk Southern Railway Co. – a Pennsylvania Supreme Court case holding that registering to do business in a state does not by itself subject a corporation to general jurisdiction in that state. 266 A.3d 541 (Pa. 2021), discussed here.
Federal Court Makes Hash out of Ohio Product Liability Act
This post is from the non-Reed Smith side of the blog.
Or maybe we should say the court cooked up a particularly nasty version of Cincinnati Chili.
The mesh case of the week, Perry v. Ethicon, Inc., 2022 U.S. Dist. LEXIS 56268 (S.D. Ohio March 29, 2022), is the worst sort of judge-made law.
No Post-Sale Duty to Warn for Explanted Product
A post-sale duty to warn is almost oxymoronic. If you think about a typical warnings case, the focus is on whether the manufacturer/seller had notice of a potential risk before the product left its control (or prescribed to the plaintiff), and if so, whether that risk was adequately conveyed to the plaintiff. The question we
The Intersection Between the Lanham Act and the FDCA
FDA’s exclusive enforcement powers prohibit plaintiffs from bringing what amount to private FDCA violation claims in the guise of private civil litigation. 21 U.S.C. §337(a). That is the foundation on which prescription drug and device preemption is built. However, preemption is about the interplay between federal and state law requirements and where the latter must
Vaccine Products Liability Claims Preempted
These days, you are probably expecting a vaccine post to be about Covid. And while we are sure we are not done with litigation in that field, for today at least we thought we would harken back to a good, old-fashioned, garden variety vaccine products liability case and some tried and true preemption.
The plaintiff