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Hey, come closer. We’ve got a secret to share with you. We’ll whisper it in your ear. Ready?  Courts hate sealing filings.  It’s an administrative pain.  Plus, parties who claim confidentiality tend to be a bit promiscuous in that regard, labeling far more documents confidential than is warranted.  We’ve been on both sides of confidentiality

The plaintiffs in Acosta-Aguayo v. Walgreen Co., 2023 U.S. Dist. LEXIS 34836  (N.D. Ill. March 2, 2023), visited their friendly neighborhood drug store and bought a lawsuit.  Well, first they bought pain relief patches.  Those patches were over the counter (OTC) products.  No prescriptions were required.  Maybe those pain patches worked and maybe they

Keralink Intl., Inc. v. Geri-Care Pharmaceuticals  Corp., 2023 WL 2000999 (4th Cir. Feb. 15, 2023), is unusual because it is an affirmance of summary judgment in favor of the plaintiff.  

Many years ago, we won a summary judgment on behalf of our big bank client, which was suing another big bank for failure to fulfill

The first thing you learn as an appellate clerk is the importance of the standard of review.  If the review is de novo – purely legal issues – your judge will not defer at all to what happened below.  It’s a whole new (hence, de novo) ballgame. If the review is for abuse of discretion

We call ourselves the Drug and Device Law Blog, but sometimes we cover cases outside the drug and device field because such cases can sometimes be helpful or inspiring. Perhaps it is an example of thinking outside of the box.  

Jackson-Mau v. Walgreen, Inc., 2023 U.S. Dist. LEXIS12057 (EDNY Jan. 24, 2023), is

In the podcast called Know Your Enemy, political progressives take a probing look at the history of American conservative political thought.  The podcast is somewhat unusual because it takes opponents’ opinions seriously.  There is much more analysis than name-calling.  The podcast considers the views of intelligent conservative theorists and writers (e.g., Leo Strauss, Garry Wills

You’ve no doubt heard of the 5 W’s (who, what, where, when, why) as applied in journalism or police investigations.  They also apply to litigation.  For example, personal jurisdiction and forum non conveniens are “where” issues, statute of limitations and statute of repose are “when“ issues, and the metaphysical doubt we defense hacks experience while laboring under the skeptical eyes of pro-plaintiff judges and the vast indifference of the skies is a big – perhaps the biggest – “why” question.

There are also “who” questions, such as whether the plaintiff has standing or whether the right entities are being sued.  That last issue crops up all the time, including when plaintiffs pursue parent or innovator companies, pharmacies, sales reps, distributors, etc.  

In Brown v. GlaxoSmithKline, LLC, 323 Or. App. 214 (Oregon Ct. of App. Dec. 14, 2022), the issue was whether a hospital that charged for a pharmaceutical drug administered to a patient in its emergency department was a “seller” engaged in the business of selling the drug subject to strict product liability under Oregon’s product liability statute.  The trial court granted the hospital’s motion for summary judgment, holding that the hospital was not “in the business of selling” the drug.  The plaintiff appealed, got the appellate court to overturn the summary judgment, and kept the hospital in the case.

Continue Reading A Hospital Can be a Product Liability Seller-Defendant in Oregon