More than once have we taken note of the current plaintiff lawyer infatuation with enlisting “independent” (ha ha ha) laboratories that will manage to detect contaminants in any drug, cosmetic, or puddle of unicorn tears. For example, see our coverage of the Zantac MDL magnum opus ruling where the court was less than impressed by
Consumer Expectations Test Cannot Save Design Defect Claim from Preemption
When we see a court dismiss a pharma product liability case on preemption grounds, we simply have to write about it. Otherwise, we’d be required to turn in our bar card, our defense hack card, and our friendly neighborhood DDL blogger card.
In Polson v. AstraZeneca Ltd. Partnership, 2023 WL 2770687 (D. Conn.
N.D. Illinois Grants Protective Order Preventing Sales Rep Depositions
Litigation is about the subject at hand, of course. Is the product really defective? Did it really cause the alleged injury? But litigation can also be about the litigation itself. It’s like that line in The Beatles’ Penny Lane: “And though she feels as if she’s in a play/She is anyway.” The process and its
M.D. Florida Rejects Plaintiff’s Motion to Seal Medical Records
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
Pacemaker Claims Melt Away in Arizona Desert
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