California’s Proposition 65 has become a poster child for ineffective and counterproductive over-warning. You know what we are talking about. Prop 65 is the voter-enacted law that requires businesses to warn Californians about significant exposures to chemicals that allegedly cause cancer or birth defects. See Cal. H&S Code § 25249.5 et seq. A decent idea
In Pari Delicto Once More In Kansas
We write today with an update on a case applying the defense of illegality (or “in pari delicto”) to cut off product liability claims under Kansas law. Messerli v. AW Distributing, Inc. is the sad case of someone who passed away, allegedly as a result of inhaling intoxicating fumes (or “huffing”) from computer
California Court Again Embraces Hindsight Claims
We have been monitoring litigation involving tenofovir-based HIV medication for some time now. We reported a few weeks ago on oral argument in the California Court of Appeal, where the parties debated a novel “duty to innovate” under California law. We also gave you our view on the 2019 order that many say kickstarted these
Ninth Circuit Holds No Scienter Required for Misbranding of Drugs
We don’t write a lot on criminal cases, but published opinions in the Ninth Circuit involving the Food Drug and Cosmetic Act always catch our eye. In United States v. Marschall, No. 22-30048, 2023 WL 6135771 (9th Cir. Sept. 20, 2023) (to be published in F.4th), the Ninth Circuit held last week that some
Are RICO Claims Assignable? Maybe, Maybe Not
We often marvel at how plaintiffs’ attorneys find new ways to sue businesses, including under RICO. Take for example the ever-increasing number of “MSP” plaintiffs that we are seeing in the published opinions. We see plaintiffs called MSP Recovery, MSPA Claims, MSP Series, MSP-MAO, etc., and we are told that many or all of them
California Court Considers Expanding Tort Law in “Duty to Innovate” Case
We observed oral argument the other day in a case that could have a significant impact on potential liability under California tort law for pharma companies and all other innovators. In Gilead v. Superior Court, No. A165558 (Cal. Ct. App. First Dist.), a panel of the California Court of Appeal is considering whether a
Plaintiffs Get A Break On Service Of Process In The Zostavax MDL
We have long lamented the apparent relaxation of the Federal Rules of Civil Procedure in multidistrict litigation, and it happened again recently in the Zostavax MDL. We understand that the purpose of MDLs is to conduct coordinated pretrial proceedings, and we understand an MDL judge’s inclination to take a broader view of case management. But
In Pari Delicto Is Alive and Well in Kansas
We don’t see the defense of illegality much in the product liability space, but when a plaintiff’s claims arises from his or her own illegal behavior, the illegality defense can be a powerful tool. We mention this now because a district court in Kansas recently applied the illegality defense to dismiss a case based on
California Supreme Court Issues Landmark Opinion On Express Preemption
We do not often see state court opinions strongly endorsing federal preemption, or even weakly endorsing federal preemption. That is why we took notice last week when the California Supreme Court ruled unanimously that the Medicare Act expressly preempted state common-law and statutory claims against a health maintenance organization and a healthcare plan administrator. Most
Bogus Science Leads To Federal Preemption In The Ninth Circuit
A recent published opinion from the Ninth Circuit covers two issues near and dear to our hearts—federal preemption and claims based on outside laboratory testing. We care about federal preemption because . . . well, because we are the Drug and Device Law Blog, where there are some weeks when we write on preemption every