We made our annual pilgrimage to the Arizona Cactus League last week. As we’ve done for the past 20-plus years, we rendered homage to our favorite sport, baseball, and, more importantly, to our sisters, one of whom lives quite close to the San Diego Padres Spring Training field in Peoria, AZ, and the other of
First Circuit Revival of Action Against Compounder
In our first appellate oral argument we found ourselves in front of a very hot Ninth Circuit panel (that means lots of questions). We danced our hardest to affirm the district court’s denial of a criminal defendant’s motion to suppress. The problem was that the lower court had wandered onto shaky ground. We knew it.
The Maximum Illogic of “Maximum Strength” OTC Fraud Claims
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
Fourth Circuit Affirms Liability of Eyewash Sellers and Rejects Applicability of Sealed Container and Economic Loss Defenses
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
S.D. Ohio Rejects Discovery Re Other Products and Corporate Parent
Evidence of other similar acts can be devastatingly effective. It’s easier for us to believe somebody did something wrong on a specific occasion if we hear they have a prior history of doing the same thing. Federal Rule of Evidence 404(b) addresses this issue, and it is one that comes up in both civil and
More Mesh Mess
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
EDNY Holds Glucosamine Claims Preempted
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
Bard IVC Filters MDL Denies Request for Exemption from Common Benefit Fund Assessments
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
A Hospital Can be a Product Liability Seller-Defendant in Oregon
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
C.D. Cal. Bids Arrivederci to Civil RICO Claim
Last week, in the course of discussing a vaccine case, we mused over the misuse of the due process clause of the fourteenth amendment. Just for a moment we were back at U. of Chicago Law (and, as Dan Fogelberg sang, “felt that old familiar pain”). In 1984, our waist and forehead seemed smaller