Longtime readers of the Blog know we have a soft spot in our hearts for Nebraska. The state motto—“Equality Before the Law”—is both elegant and meaningful, and we should also call it progressive, given that it dates back to 1867—one year before ratification of the Fourteenth Amendment. We have also previously shared our affection for
Court Says No Way To Medical Device Plant Inspection
We came across something the other day that we don’t see very often, or really ever. The plaintiff in a medical device case served a request to inspect the two defendants’ manufacturing facilities, claiming that he was entitled to observe the premises where the device was made. Not so fast, said the defendants. And with
New Mexico Federal Court Makes The PREP Act Right Again
The world order has been restored. The clouds have parted, and all today is in perfect resonant harmony. Ok, we are exaggerating. A lot. But we are pleased to report that at least one federal district court has correctly interpreted and applied the PREP Act. We are sure you are as relieved as we are.
Federal District Court Turns Prep Act On Its Head
We scratched our heads last year when the Third Circuit misconstrued the federal PREP Act to allow a state-law negligence claim arising from an alleged COVID-related death, in direct contravention of the Act’s express preemption. See Maglioli v. Alliance HC Holdings LLC, 16 F. 4th 393 (3d Cir. 2021). The other shoe dropped the
California Courts Are At It Again On Personal Jurisdiction
California’s courts have never met a case they did not like. Or, more precisely, they have never met a case over which they would not exercise jurisdiction if arguably supported by the facts, and even when not supported by the facts. We are exaggerating, of course, but not by much. You will recall that the
Go Ahead And Inspect The Device, Court Says
An explanted medical device is an interesting thing. It was designed and made to reside within the human body, and it was implanted for the purpose of saving or improving life, even if only cosmetically. Sometimes it has to be removed, often by design and under the applicable standards of care. Take for example retrievable
Casting Doubt And Poking Holes—Defense Causation Opinion Admissible Even If Not To A Reasonable Probability
A very helpful to-be-published opinion from the California Court of Appeal caught our eye this week because it comes out the correct way on an issue that has always bothered us: Does a defendant (not the plaintiff) in a product defect case have to offer evidence on medical causation to a reasonable degree of medical
No Alleged Harm, No Leg To Stand On
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