We were talking the other day with a colleague with whom we have been in the mass tort trenches for most of the last 20 years, and she observed that “it’s not about the tort anymore.” Well, it is, and it isn’t. We still see cases, sometimes in very large numbers, involving drugs and medical
California’s Mandatory Trial Preference Statute? Maybe Not So Mandatory
A California appellate court has ruled that California’s mandatory trial preference statute is not always mandatory, an opinion that gives courts and defendants a slight bit of breathing room in an otherwise unforgiving space. Every practitioner in the product liability space has encountered California’s trial preference statute, Civil Procedure Code Section 36. That is the
How Can A Plaintiff Prove Warnings Causation? The Ninth Circuit Wants To Know
The Ninth Circuit has certified a question to the California Supreme Court on the learned intermediary doctrine that immediately caught our attention: In a failure-to-warn claim against a prescription medical product manufacturer, is the plaintiff required to show that a stronger warning would have altered the physician’s decision to prescribe the product? Or can the
Will This Finally Be The End Of The Incretin-Based Therapies MDL?
The Incretin-Based Therapies MDL has followed a long and winding road, and it all should come to an end with a recent Ninth Circuit opinion affirming the exclusion of the plaintiffs’ only general causation expert. It all started in 2013 with the MDL transfer of cases involving multiple diabetes drugs to the Southern District of
More on Choice Of Law—This Is How It Works
We heard the other day from attorneys involved in the MDL direct filing, choice-of-law case that we wrote about a couple of weeks ago, Looper v. Cook Inc. Engaging in this kind of dialogue is one of the joys of blogging, even when our friends and colleagues write to tell us we got
This Is Why You Should Think Twice About MDL Direct Filing
We have long thought that “direct filing” procedures in multidistrict litigation were a solution in search of a problem. We also think direct filing procedures in MDLs pose significant waiver risks without a corresponding upside. Alas, our inclinations were confirmed recently when the Seventh Circuit ruled that a mass tort defendant’s acquiescence to complaints filed
Supreme Court Declines To Enjoin Maine’s Vaccine Mandate, But Check Out The Dissent
We told you that if anti-vaxxers found a sympathetic court in their quest to declare government vaccine mandates unconstitutional, we would let you know. Well, we did not think it would be so soon. And we surely did not think that the sympathetic court would be the United States Supreme Court.
Don’t get the wrong
We Repeat—Yes, The Government Can Require Vaccines
We observed in a recent post that the constitutionality of government vaccine requirements really should not be controversial, and after reporting recently on yet another case upholding such requirements, we expressed our hope that we would not be writing much further on them.
Well, here we are, writing again on government vaccine requirements—as we did
Prescription Drugs and Class Actions Do Not Mix
Some things were never meant to go together. Oil and water. Ice cream and ketchup. Harry Potter and Lord Voldemort (although fans of the books will quickly point out that Boy Who Lived was actually linked inextricably to his arch enemy). Picnics and honey bees. Elected officials and the power to borrow money. You get
The Reverse Sham Affidavit Rule? It’s A Thing
A recent order in the Xarelto MDL caught our attention because it is an example of something we see more and more: A plaintiff in multidistrict litigation who neither accepts a settlement program worked out in the MDL nor is prepared to proceed with his or her claims once the chance to settle has passed.