Bexis is going to have to give up saying that nothing good ever comes out of Missouri, because for the second time in just a few months we are reporting on a well-reasoned opinion from Missouri that comes to the right result for the right reasons. In Fullerton v. Smith & Nephew, Inc., No.
Plaintiff Has To Pay Retail For Medical Device Exemplars
We’re writing a quick-hit post today on a topic that comes up often in medical device litigation, but rarely results in a court order—what happens when the plaintiffs want an “exemplar” medical device? How do they get one and who pays for it?
We’re not talking here about the medical device that was actually used
Warning Causation Sinks Another Generic “Failure To Update” Claim
It’s Delaware week here at the DDL Blog. A couple of days ago we brought you a particularly clear-minded order rejecting innovator liability in the First State (so nicknamed because Delaware was the first of the original 13 colonies to ratify the Constitution in 1787), and yesterday we reported on a pair of Delaware orders
Baseless Vaccine Autism Lawsuit Dismissed
Sometimes judges save what they really want to say for the end of their orders; and sometimes, even when one side clearly and justifiably prevails in a lawsuit, there are no winners. That is the sad tale of Doe v. Merck & Co., No. 16-CV-04005, 2019 WL 1298270 (E.D.N.Y. Mar. 21, 2019), which represents
Federal Question Jurisdiction Without A Federal Claim?
Can you have federal question jurisdiction in a case where no federal claim is alleged? The question has a certain self-defining quality to it, sort of like asking if something done under the table can be above board. Or asking whether the Holy Roman Empire was holy, Roman, or an empire.
We stole that last
Taxing Drug Decision Goes Against Gambler
We have two things in common with the petitioner in Mancini v. Commissioner of Internal Revenue, No 16975-13, 2019 Tax Ct. Memo LEXIS 16 (U.S. Tax Ct. Mar. 4, 2019). First, we both will be filing our 2018 tax returns in about a month from now, unless of course Mr. Mancini is more on
Man Bites Dog – Plaintiff Argues that Device Manufacturer Liable for NOT Having a Representative in the Operating Room – Loses Anyway
Medical device sales representatives are often present in the operating room during surgical procedures, especially with procedures involving orthopedic devices. With those kinds of devices (and others), the hospital typically contacts the sales representative in advance, and he or she is charged with delivering the device in the specified size and providing any specialized instrumentation
Game-Changing Opinion on Venue from Missouri Supreme Court
Bexis is known to say that nothing good ever comes out of Missouri, but the Missouri Supreme Court has proven him wrong. We have long made exceptions to Bexis’ proclamation for Mark Twain, Maya Angelou, and Kansas City barbeque, and we can now add to that list the Missouri Supreme Court’s new opinion in State
First Amendment Pours Cold Water on Sugary Beverage Warning Law
It is easy to articulate the core principle behind the First Amendment right to free speech: The government can’t restrict what you say or make you say what the government wants without a good reason. Ah, but how good a reason and what kind of reason? That is where it gets more complicated. How do
Can’t Tell Who Is in the Class? Class Cert Denied
What do you get when no one has been injured and the most you can say is that maybe someone received medicine made from an active pharmaceutical ingredient that may have contained—but was never actually observed to contain—a harmless contaminant? Add to that that you can’t really tell who might have used the product that