The unwieldy and sometimes unfair nature of multidistrict litigation has become a recurring theme on the DDL Blog. We have long commented on the “if you build it, they will come” dynamic that leads to hundreds or thousands of cases gathered, filed, and then parked in an MDL—all hoping to do as little
Steven Boranian
Sixth Circuit Affirms Exclusion Of General Causation Expert in Onglyza MDL
The MDL and state court proceedings involving saxagliptin-based diabetes drugs (such as Onglyza and Kombiglyze) strike us as the mass tort that never should have been. These proceedings initially followed a familiar model—a publication identified a signal of a risk (albeit an exceptionally weak signal), and plaintiffs’ lawyers took their cue to collect their inventories…
Is Human Tissue A Product?
We don’t see many cases involving human tissue, but medical products derived from human tissue are actually quite common. Skin replacement products, tissue-engineered cartilage, compounds for treating bone fractures and tumors. Those kinds of things. Just yesterday in our annual Ten Best/Ten Worst Cases webinar we discussed a case involving transplanted human eye tissue. …
Life-Saving Drugs and Chicken Bones: California Court Expands Innovator Duties of Care
We reported a few months ago on oral argument in the California Court of Appeal in Gilead Life Sciences v. Superior Court, where the parties argued about whether California law recognizes a broad “duty to innovate.” At issue was whether a product manufacturer could be liable to patients taking one drug for failing to…
Lessons Learned From The Latest Zostavax Expert Order
We had the pleasure of speaking on a panel at ACI last week, including discussion of the terrific order from the Zantac MDL excluding all the plaintiffs’ general causation experts. That order essentially did away with an entire MDL and came in fourth on our list of best decisions of 2022 . Our thoroughly enjoyable…
This Is Why Federal Law Preempts “Pre-Approval” Design Defect Claims
We knew as soon as we read the Supreme Court’s opinion in Mutual Pharma v. Bartlett that its reasoning should extend beyond generic drugs and would support implied preemption in generic and innovator products alike. We were generally correct. Bartlett held that federal law preempted state law design defect claims involving a generic drug because…
Here Is Another Thing Wrong With Prop 65
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…