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
This Is What The California Supreme Court Did With The Learned Intermediary Rule
The California Supreme Court issued its widely anticipated opinion on the learned intermediary rule the other day, and the opinion is worth the wait. Based on the oral argument (which we reported on here), we did not expect the Supreme Court to enact a fundamental change to the learned intermediary doctrine, and the Court
California Court Largely Guts Pharma Privacy Claims
Plaintiffs’ attorneys are always looking for new ways to sue pharmaceutical companies. Under the banner of “no good deed goes unpunished,” plaintiffs in California recently sued a prescription drug manufacturer after they took advantage of the manufacturer’s program to help pay for a medicine widely used to treat arthritis and plaque psoriasis. There are no
Rule 23(d) Strikes Again—This Time For The Good Guys
We brought you yesterday an example of a district court using Rule 23(d) to order a curative action vis-à-vis a putative class, but not in a good way. In that case, a medical device manufacturer initiated a recall of certain lots and published recall information for patients, in coordination with the FDA. Some enterprising plaintiffs’