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’
California Court Gets It Wrong On The PREP Act
The PREP Act is having a moment. Congress enacted the Public Readiness & Emergency Preparedness Act (“PREP Act”) in 2005 to ensure the availability of effective countermeasures in the event of public health emergencies. The declaration of COVID-19 as an “emergency” has thus thrust the PREP Act into the limelight. Heck, when you’re a federal
California Supreme Court Grants Review on “Duty to Innovate”
The California Supreme Court has granted review in Gilead Life Sciences v. Superior Court, the case in which the California Court of Appeal ruled that the defendant could be liable to users of one drug for alleged negligence in connection with a different drug, even while admitting that the drug they actually used
California Supreme Court Hears Argument On Learned Intermediary Doctrine
We observed oral argument the other day before the California Supreme Court in Himes v. Somatics, a case that places California’s learned intermediary doctrine squarely in the spotlight. A learned intermediary case before the California Supreme Court? For your ever-vigilant DDL bloggers, that is like Thanksgiving and Christmas wrapped into one!
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