There have been some famous law review articles, such as R. Coase, “The Problem of Social Cost,” J. of Law and Economics (1960), and S. Warren & L. Brandeis, “The Right to Privacy,” Harvard L. Rev. (1890). Those articles made waves when they came out, and they were cited endlessly. But when was the last
Gadolinium Case Gets SOL’d and Preempted
Happy New Year. We are doing that usual January/Janus thing of looking both backwards and forwards. We are gearing up for a massive litigation in 2025, for a couple of trials, and for the January 16 Drug and Device Law webinar on the best and worst cases of 2024. And we’re still finding some 2024
Laser Treatment Plaintiff gets Burned by California Learned Intermediary Rule; but her Design Defect Claims are Saved by Skin-deep Analysis
May the holidays treat you well. We trust that none of you got burnt by any of the many hot things loitering around this time of year: yule logs, candles, figgy puddings, overloaded electrical outlets, and Aunt Sally’s line dancing after she downs a third eggnog.
Today’s case is not exactly hot, but it’s got
C.D. Cal. Dismisses Acne OTC/Benzene Claims as Preempted
It might seem that we talk about preemption incessantly on this blog, but a pretty good opinion from a pretty important jurisdiction went unremarked by us last September. We’ll rectify that right now. Call it an end of year clean up session.
The decision in Howard v. Alchemee, LLC, 2024 U.S. Dist. LEXIS 169359
Some Semi-Intelligent Takes on Artificial Intelligence
December is both a festive and frantic month. Along with all the caroling, wassailing, and gift-buying, the last month of the year invariably sees us squeezing in continuing legal education (CLE) credits, reconnecting with old friends at the ACI drug and device conference in New York City, and wrapping up the Fall/Winter semester class we
Plaintiff Cancer Causation Theory Flunks Frye Test
We’re in New York this week for a legal conference that is always a good time. But, truth be told (and we are officers of the court, after all), several years ago we attended a conference sponsored by plaintiff lawyers and it was in every way a delightful affair. The judges did more than show
S.D. Fla. Dismisses Claims for Failure to Warn and Test/Inspect
There was a time when it seemed that half our posts were mixed bags of TwIqbal — product liability claims tested against the SCOTUS decisions in Twombly and Iqbal requiring pleadings to be substantive and plausible. Then things settled down for a bit. Did plaintiffs get smarter? Did courts resume tolerance for bare bones complaints?
N.Y. Court Holds that the Federal Controlled Substances Act Did Not Preempt New York’s Liberal Marijuana Laws/Regulations
Back in our AUSA days we prosecuted many drug cases. That was a significant part of our job. The defendants were uniformly unsavory and many were violent. That being said, the mandatory minimum sentences were often crazily high. Sell 50.1 grams of crack and eat ten years. If you had a prior drug conviction (hardly
N.D. Indiana Dismisses Off-label False Claims Act Case
This is the second time in the last couple of weeks that we’ve written on a case brought under the False Claims Act (FCA). That is no accident. We are about to start a FCA trial, and have been studying all things FCA. Guess what we learned? Most FCA claims are even more bogus than
Alabama Supreme Court Applies AMLA Standards to Various Causes of Action
In the law, both form and substance matter. At the same time, we frequently see judicial opinions making the point that form should not be elevated over substance. Mottern v. Baptist Health System, Inc., 2024 WL 4097539 (Alabama Sept. 6, 2024), supplies a recent example. In Mottern, the Alabama Supreme Court permitted a plaintiff to