There is an exhibition at the National Museum of the American Indian in Washington DC showing a warrior with eyes on the back of his head and a blank, eyeless face on the front. That odd image reflects the profound truth that we have seen what has already happened but are blind to the future.
Alternate Pleading Dooms Res Ipsa Claim
Early on in law school we were taught the virtues of alternate pleading. Different theories against the same defendant, or different theories against different defendants, were perfectly acceptable even if inconsistent.
There is something counterintuitive about that. It seems to lift the veil in front of the law, revealing it to be an opportunistic enterprise
Court Rejects Aiding/Abetting and Conspiracy Claims Against Breast Implant Manufacturer
From our days as a prosecutor, we built up a healthy respect for the power of conspiracy claims. They can be a splendid tool for dragging in more defendants, beating the rule against hearsay (coconspirator statement exception), beating the statute of limitations (a continuing conspiracy can bring even old statements up to date), and telling
Michigan Court Rules Vaccination in Best Interest of Child
The Holiday season is also the cinema season. We’re giddy about movies right now. Today sees the release of the trailer for No Time to Die, the 25th Bond film (counting only the “official” EON productions – sorry about that, Casino Royale (1967) and Never Say Never Again (1983)). No Time to Die (hereinafter
Illinois Refuses to Impose Duty on Pharmacy to Warn Patient Orally
When we discuss the learned intermediary rule, it is typically in the context of protecting our drug and device manufacturer clients. If a manufacturer warned the doctor, it discharged its duties, and a plaintiff should not be able to claim that he or she was not directly warned. We do not often represent pharmacies, but
The Age of Reptiles
We are rounding the final curve of the Fall academic calendar, so now come the sessions in the litigation class we teach at Penn Law when we discuss story-telling. It is not as if we have anything novel to say. The best (most attention-getting, understandable, memorable, and persuasive) stories are ones we have already heard
Recent Executive Orders Clamp Down on Agency Guidances
We seem to be having an administrative law moment at the DDL blog. That subject matter area is seldom sexy. It can be, frankly, quite dry. But administrative law can have a huge impact on drug and device law. Yesterday, Bexis discussed cases holding that agency rules that did not undergo required notice and comment
New Jersey Product Liability Act Knocks out Design Defect, Manufacturing, Warning, Warranty, and Fraud Claims Against IVC Filter
A couple of weeks ago we compared New Jersey litigation with New Jersey food and decided we liked the food better. No aspersions were intended. After all, we grew up in New Jersey and still worship at the altars of Seton Hall Prep, Bruce Springsteen, and the New York football Giants. Anyway, we might need
Primary Jurisdiction Forecloses Lanham Act Challenging Medical Device Classification
The focus of this blog is on product liability cases, but every once in a while a case from another subject matter area tugs at our elbow, begging for attention. Today’s case, Kurin, Inc. v. Magnolia Medical Technologies, Inc., 2019 U.S. Dist. LEXIS 184382 (S.D. Cal. Oct. 23, 2019), is an interesting – albeit
Plaintiff Cannot Defeat Diversity by Suing Local Hospital without Complying with Louisiana Med-Mal Requirements
Diversity jurisdiction has been on our minds a lot lately. Last week, we wrote about a plaintiff who unsuccessfully tried to steer under the $75,000 amount in controversy requirement. As John Adams said, “facts are stubborn things,” and the existence of medical bills in excess of $75,000 refuted the plaintiff’s remand motion and permitted the