The district court’s order applying Michigan law and dismissing one plaintiff’s complaint in the Tapezza MDL may be the last of a dying breed. The court faithfully enforced Michigan’s statute providing a presumption of non-defectiveness for FDA approved drugs and dismissed the plaintiffs’ case. But alas, Michigan repealed that law effective February 13, 2024, thus
First Circuit Approves Federal Officer Jurisdiction In Insulin Pricing Row
Federal officer jurisdiction is the quiet middle child of the federal jurisdiction family. We all came out of law school fully versed in federal question jurisdiction and diversity jurisdiction (and we also vividly recall our civil procedure professor using Wyoming and Colorado for all his hypotheticals on diversity of citizenship because those were the only
Medical Device Claims Preempted in Ohio
Preemption is one of our favorite topics, not only because it is a powerful defense, but also because the intricacies of preemption and its many flavors make it inherently interesting—at least to us. We lamented just yesterday that many judges reflexively deny motions to dismiss on preemption, but others see the light from the get
Group Pleading, No Causation Leave Plaintiff Blue In Kentucky
We receive emails from readers fairly regularly. They are usually from other attorneys, sometimes friends or acquaintances sharing their points of view or expanding on things that we may have underplayed or overlooked. Although we don’t spend much time (or really any time) trying to predict when we might hear from others, we have noticed
Learned Intermediary Rule Still Alive and Well in California
We have a couple of updates on the learned intermediary rule in California. We reported to you three months ago on the California Supreme Court’s tweaking of the learned intermediary rule in Himes v. Somatics, and the tweaks were not good. As we wrote back then, the Court did not make any fundamental
There Is No Substitute: Arizona Law Does Not Permit FDA Warnings To Stand In For Expert Opinion
We reported last year on a case in which the Arizona Court of Appeals allowed FDA-approved drug warnings to define the standard of care for a physician’s informed consent. Why does that matter? Well, in most every jurisdiction, a plaintiff bringing an action for medical negligence has to produce expert opinion that the defendant breached
Duty to Innovate Before The California Supreme Court: The Briefs Are In
Both sides in Gilead v. Superior Court have filed their opening briefs in the California Supreme Court, and the extreme nature of the California Court of Appeal’s opinion extending a manufacturer’s duties has been laid bare. As expected, the defendant convincingly argued that the California Court of Appeal has imposed potentially unlimited liability on product
Vermont Supreme Court Correctly Rejects Vaccine Claim Under PREP Act
The Vermont Supreme Court correctly applied the PREP Act last week to dismiss state-law claims arising from a COVID vaccine. See Politella v. Windham Southeast School Dist., No 23-AP-237, 2024 WL 3545717 (Vt. July 26, 2024) (to be published in A.3d). This was an easy case, and the PREP Act (aka the “Public Readiness
It’s Hip To Be Preempted, Again
We are celebrating an anniversary today: We wrote our first blogpost on July 26, 2013. Eleven years and hundreds of posts later, we have two observations. First, we seriously need to update our blog profile photo. Or maybe we will just ride out our blogging years promoting the fiction that we are younger and fitter
No Private Right of Action Under the FDCA in Big Sky Country
We have been to Montana only once. Through various life events, we have traveled by highway from the San Francisco Bay Area to the Midwest multiple times, so we are somewhat familiar with the mountains of Utah, western railroad towns like Cheyenne and North Platte, and the long rolling expanse known as Nebraska. We never