A complaint gets filed in California naming hundreds of plaintiffs, only 20 of whom reside in California, against out-of-state manufacturers. Sound familiar? Sound like something the Supreme Court rejected in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). It should. So, why are we here again? I guess you can credit
Eighth Circuit Doesn’t Let Swallowing Pills Swallow the Statute of Limitations
We did a search of the DDL Blog for “continuing violation” and found only one other reference and that was simply to note that the court rejected the theory without explanation. So, it’s not the first time a plaintiff has tried to argue the continuing violation theory to avoid the statute of limitations in a
New Jersey Finds Preemption in Breast Implant Litigation
While 2019 is solidly under way, we’re still catching up on a sizable number of favorable decisions to have come down right before the new year. That’s certainly not a complaint. We love a full plate of defense wins. So, for today’s post we’re reaching back a few weeks to tell you about a decision
Issue of First Impression – You Can’t Redirect Remand
You can waive remand. That’s Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). But, if you agree to remand, you’re going back whence you came. So said the Judicial Panel on Multidistrict Litigation earlier this month in In re: Biomet M2A Magnum Hip Implant Products Liability Litigation, 2018
Interesting Appellate Decision on Standing/Irreparable Harm
Today’s case is not our usual fare. But we’ve never seen this kind of appeal succeed before, so we’re going to spare a few minutes for something a little odd but important.
First of all, the patient and the medical device manufacturer are on the same side – they’re both plaintiffs in Alcresta Therapeutics, Inc.
Discovery Rule Rules the Day on Statute of Limitations Motion to Dismiss
Geographical pride. A feeling of community. Belonging. Being one of the locals. We all experience it to some degree. Sometimes you take it with you. Like wearing your favorite Roll Tide t-shirt while listening to jazz in New Orleans. While Pennsylvanians may not take kindly to out-of-state sports jerseys, they welcome Maine lobster and Delaware
IDE Preemption Affirmed in Kentucky
When it comes to medical device preemption, having Pre-Market Approval (“PMA”) is like being dealt pocket aces in Texas Hold’Em Poker. It’s the strongest starting hand you can have; a 4:1 favorite over any other two card combo. It means you’re starting in the power position. Since the Supreme Court’s decision in Riegel v. Medtronic,
Plaintiff’s Motion for New Trial Denied in Bair Hugger MDL
Back in May, 3M won the first MDL bellwether trial in In re: Bair Hugger Forced Air Warning Devices Prods. Liab. Litig. (D. Minn.). The case was Gareis v. 3M Company and at the time of trial, the only claim remaining in the case was for strict liability design defect under South Carolina law. 2018
Third Circuit Rejects Failure to Report Claims
Failure to warn claims premised on a failure to report incidents to a federal governing agency are preempted in the Third Circuit. Sikkelee v. Precision Airmotive Corporation, — F.3d –, 2018 WL 5289702 (3d. Cir. Oct. 25, 2018). And this would be a DDL Blog drop the mic moment if the ruling had come
Plaintiffs’ Sanctions Request Emphatically Denied
In a classic case of overreaching, plaintiffs in the In re Abilify MDL, sought sanctions against the defendant for not preserving emails dating between 2002 and 2006 – more than a decade before the start of the litigation. We have a hard time even contemplating what a duty to preserve that covered those emails would