In the last couple of years we have gone to plenty of Multidistrict Litigation (MDL) court conferences. We’ve also gone to plenty of bench-bar conferences about MDLs. From the defense point of view, the key issues are early vetting of cases, even-handed discovery, and avoidance of bellwether trials where the deck is stacked in favor
Stephen McConnell
Judicial Nominee Jeopardy
Last week we read a couple of online articles, including in the ABA Journal, about the unique questioning style of United States Senator John Kennedy (R- Louisiana) when it comes to federal judicial nominees.
By now, we all know how judicial nominees do the usual dance of saying as little as possible. Understandably, they decline to…
Sunscreen Benzene Complaint Gets Burnt
Back in 1997, a Chicago Tribune columnist wrote a hypothetical commencement speech that garnered a lot of attention. Like most commencement speeches, it offered uplifting advice to the bright young minds about to enter the working world. Unlike most, it directed the graduates to wear sunscreen. That suggestion (often wrongly attributed to Kurt Vonnegut) became…
Don’t Sleep on State Law Distinctions in the CPAP MDL
Our abiding skepticism about multidistrict litigations (MDLs) is redeemed — a little — by the recent decision in In re CPAP, 2024 U.S. Dist. LEXIS 25528 (W.D.Pa. Feb. 14, 2024). The Lexis printout of the opinion is not nearly as long as it looks. More than half the pages merely list the attorneys. Lots…
Ohio Court Sees No Merit in Contact Lens Case
Happy Valentine’s Day. To celebrate, we will discuss a court decision that we love.
Preemption and the Ohio Product Liability Act (OPLA) are two of the best friends a drug/device defense lawyer has. Both show up in Groeschen v. Alcon Laboratories, Inc., 2024 Ohio Misc. LEXIS 2 (Ohio Ct. Comm. Pleas Feb. 2, 2024). As…
Dunn and Done: MDL Remand Court Rejects Attempt to Amend Complaint
Dunn v. Sanofi-Aventis U.S. LLC, 2024 U.S. Dist. LEXIS 14111 (M.D. Alabama Jan. 26, 2024), involves yet another post-MDL attempt by a remanded plaintiff to amend her complaint. This time the court rejected the amendment.
Why was the amendment rejected? We’ve been seeing over the last couple of years how SCOTUS has emphasized the centrality…
Sixth Circuit Rejects PREP Act Immunity in Medical Malpractice Case
Law school exams are usually exercises in issue spotting. Buried within the fact scenarios are various legal issues. The student earns points by identifying those issues and discussing how they should be resolved. Sequence also matters. It makes sense to walk through threshold issues, such as jurisdiction, first.
Goins v. Saint Elizabeth Medical Center, Inc.…
SDNY Holds that Cough Drop Consumer Fraud Case is Expressly Preempted
We’ve pointed out several times recently (and will be pointing out in an ACI presentation today) that cases against over the counter (OTC) drugs are on the uptick. Why? Here’s our theory: there are lots of OTC consumers, hence lots of potential plaintiffs, and there are no pesky learned intermediaries, which means that plaintiffs can…
Sixth Circuit Upholds Exclusion of Unvaccinated from Jury Pool
Two years ago we posted on whether courts could exclude prospective jurors for cause because they weren’t vaccinated. Not much precedent was then available.
Now, with United States v. O’Lear, 2024 WL 79971 (6th Cir. Jan. 8, 2024), we get the first published appellate decision on the topic, affirming the exclusion. (The Ninth Circuit…
West Virginia Appellate Court Requires Safer Alternative for Negligent Design Defect Claims
Our work on “hard goods” (automobile, appliance, fire) product liability cases is greatly outnumbered by our drug and device cases (and probably also outnumbered these days by website privacy cases). But the history of product liability has often been driven by such hard goods cases. Think of Cardozo’s famous opinion in MacPherson v. Buick.…