Federal officer jurisdiction is having a moment. In November 2024, we called federal officer jurisdiction the quiet middle child of the federal jurisdiction family, but then earlier this year the Supreme Court decided Chevron USA Inc. v. Plaquemines Parish. That opinion held that federal officer jurisdiction was broader than many previously thought, which we
California Court Powers Up Preemption In Protein Case
The plaintiff in Kha v. Tilray Brands, Inc. tried to use California’s Sherman Law to do an end run around the Food, Drug, and Cosmetic Act in a case involving hemp products, but it did not work. The district court correctly saw the case as an attempt to impose additional, state-law requirements on food labeling
No Duty to Innovate: California Supreme Court Rejects New Negligence Theory
The California Supreme Court handed down its long-awaited decision in Gilead Tenofovir Cases yesterday, and as we hoped, the Court held that a drug manufacturer owes no duty of care when deciding whether and when to develop an allegedly safer alternative drug to replace an admittedly non-defective product. The decision is a significant win for
Third Circuit Vacates Avandia Class Cert—Correlation Is Not Causation
The order certifying a class of third-party payors in the long-running Avandia MDL was the wrong result for the wrong reasons, and the Third Circuit has now vacated that order in an opinion that is well worth the read. In In Re: Avandia Marketing, Sales Practices and Products Liability Litigation, No. 25-2278, 2026 WL
New Jersey Requires “Rigorous Gatekeeping” for Expert Opinions Across the Board
New Jersey law requires that trial courts conduct a “rigorous gatekeeping” analysis when assessing the admissibility of expert opinions. That’s the Accutane standard, named for the New Jersey Supreme Court’s opinion in In re Accutane, 234 N.J. 340 (2018). To the extent there was any ambiguity on whether Accutane applies to all civil cases
We Were Wrong On 340B, Sort Of
We reported a couple of months ago on important decisions in the Fourth Circuit that invalidated state laws in West Virginia and Maryland purporting to compel pharmaceutical manufacturers to deliver steeply discounted prescription medicines to unlimited numbers of pharmacies under the federal 340B drug discount program. Because the opinions created a circuit split on a
Georgia Court Not In The Mood For Strict Liability Against A Product “Seller”
Is there a difference between a product manufacturer and a product seller when it comes to product liability? There is in Georgia, and the Georgia Court of Appeals’ recent opinion in Taylor v. Mood Rite, LLC, 2026 Ga. App. LEXIS 240 (Ga. Ct. App. May 15, 2026), underscores that point. An entity that merely
California Supreme Court Hears Argument On The “Duty to Innovate”
We observed arguments last week in the California Supreme Court in Gilead Tenofovir Cases, and quality advocates on both sides put on a great performance. As we previewed last week, the case presents a question with potentially sweeping consequences for product liability law: Does a pharmaceutical manufacturer owe a duty of reasonable care
The “Duty to Innovate” Arrives at the California Supreme Court: Oral Argument Set for May 6, 2026
After nearly three years of litigation winding through California’s appellate courts, the closely watched Gilead Tenofovir Cases is finally set for oral argument before the California Supreme Court on Wednesday, May 6, 2026, at 9:00 a.m. in San Francisco. The case presents a question with potentially sweeping consequences for product liability law: Does a pharmaceutical
Next Stop SCOTUS? Fourth Circuit Creates Split On 340B Contract Pharmacies
Can states compel prescription drug manufacturers to deliver steeply discounted medicines to unlimited numbers of pharmacies? That is the issue that has been kicking around federal courts for a few years now, and the Fourth Circuit has now weighed in by answering “no.”
We are talking here about drugs purchased under the federal government’s 340B