Sometimes we write on issues for peculiar reasons. Today, for example, a case on a certain topic caught our eye because of its catchy name: Clark v. Perfect Bar. So many questions arise from this concise, yet provocative tag. Did the owner of the 100-year-old brand Clark Bar get sideways with a modern upstart
Sales Representative Fraudulently Joined In Illinois
Plaintiffs often prefer to be in state court, and when we first started doing a lot of product liability litigation way back when, we were struck by how much time and effort plaintiffs spent trying to evade federal jurisdiction and litigating motions to remand to state court. We don’t wonder so much anymore. Jaded, we
No Innovator Liability, No Personal Jurisdiction Either in Idaho
We have an update today on a case from Idaho on which we blogged late last year. The issue then was innovator liability, and we gave our enthusiastic stamp of approval to the court’s rejection of “product liability” where the innovator manufacturer neither made nor sold the product that allegedly harmed the plaintiff. As the
Plain Meaning Governs Snap Removals in Seventh Circuit
We have always puzzled over why pre-service removals are the least bit controversial. We are referring to what are known as “snap removals,” or removals to federal court before any forum defendant has been served. They are one way to comply with the removal statute’s forum defendant rule. It’s pretty simple: Even when you have
This Is The Correct Standard For Judging Predominance In Class Actions
The Third Circuit issued a gem of an opinion on class certification last month, and we like it because it puts a laser focus on what a plaintiff has to prove to get a class certified and the district court’s duty to examine and resolve disputes at the class certification stage. In In re Lamictal
California Lotion Class Action Slides into Federal Preemption
Are moisturizing lotions cosmetics or drugs? They say on TV that lotions “lift and moisturize,” but does that move them into the “Drug” column of the “Food Drug and Cosmetic” ledger? We will hazard a guess that lotions are usually cosmetics, but what if the manufacturer adds an SPF factor? We would then say that
Gadolinium Plaintiff Runs Into Preemption Wall in Louisiana
The recent spate of gadolinium cases brought by patients with normal kidney function are looking like fertile ground for federal preemption, and we are not saying that just because we like the results. Our point is that if you had to come up with an example of a case where federal law ought to preempt
The Sun Shines on Heightened Pleading Standards in Arizona
We don’t write a lot about our neighboring state of Arizona, but a recent hip replacement case in the District of Arizona caught our eye. We lived in Arizona for a year back in the mid-1990s, and it is a genuinely interesting and underestimated place. The 2010 census results have Phoenix as the sixth largest
No Physician Testimony, No Causation in Georgia and Delaware
This is a quick-hit post bringing you two first-of-their-kind orders on proving causation in cases alleging inadequate drug or medical device warnings. In orders applying Georgia’s and Delaware’s versions of the learned intermediary doctrine, two different federal courts have held that a plaintiff alleging inadequate warnings cannot meet his or her burden of proving causation
General Causation Experts Excluded In Viagra/Cialis MDL
The Ninth Circuit has not been great for us on Daubert. I suppose it is more accurate to say that the Ninth Circuit has not been great for those who oppose the introduction of unreliable scientific expert opinions. But that is usually us, the defendants resisting plaintiffs’ efforts to get to juries with scientific