The Great Recession, or whatever catchy label you want to use, affected everyone in the law business: drug and device companies, defense lawyers, and, it seems, plaintiffs’ lawyers as well. How else to explain two new summary judgment decisions involving devices manufactured by Howmedica, where the plaintiffs’ counsel went cheap, failed to get experts, and
A Terrible Trio
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There’s an old saying, “bad things come in threes.” We don’t know where it comes from, and don’t even think it’s true, although a trio of new opinions in the ObTape MDL is making us reconsider.
Recently, a group of “Phase I Plaintiffs” (and their experts) survived summary judgment and Daubert attacks. These plaintiffs brought…
A First Amendment Showdown in the Second Circuit
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If you’ve been reading us for a while, you know how worked up we get about how the FDA’s overbearing and paternalistic regulatory scheme infringes on the free speech rights of manufacturers. And if you haven’t been reading us for a while (or just want a refresher), click on the “First Amendment” link to the right (or at the end of this post) and you’ll see our collection of Greatest Hits on the topic – some short and some long (hey, we warned you, we can get worked up about free speech).
One of those posts was about United States v. Caronia, a case where the government chose to prosecute a sales rep for promoting Xyrem off-label. Way back in 2008, we railed against the District Court’s decision to reject the defendant’s First Amendment arguments and deny a motion to dismiss, allowing this criminal case to go forward. Turns out we were right to be miffed; ultimately, the case went to a jury, which convicted the sales rep on the charge of conspiracy to misbrand Xyrem.
After a tortuous post-trial and sentencing process – one year probation, 100 hours community service, and a $25 fine in case you’re wondering – Mr. Caronia was finally able to appeal his conviction to the Second Circuit. The appellant’s opening brief and the Washington Legal Foundation’s (“WLF”) amicus brief were filed a couple of weeks ago, and we’ve had a chance to take a gander – and we’ve also seen this informative Legal Pulse piece from our friends at WLF, laying out WLF’s read on the case.Continue Reading A First Amendment Showdown in the Second Circuit
HD Or Not HD: That Is The Question
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Another non-drug/device case recently caught our eye, not only because it allows us to parody Shakespeare, but because of its potential implication for all those companies that are based in New Jersey and get sued under the liberal New Jersey Consumer Fraud Act as a result (and as we all know, there is a considerable…
Keeping the Horse Before the Wobbling Cart
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It’s not a drug or device case, but a recent per curiam from the 7th Circuit (with a panel that includes McConnell’s BFF Posner) recently caught our eye. American Honda Motor Co., Inc. v. Allen, __ F.3d __, 2010 WL 1332781 (7th Cir. Apr. 7, 2010), may turn out to be handy for anyone…
Intron Intrenched in New Jersey
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Good luck bringing a class action in New Jersey federal court invoking the “off-label marketing” bugaboo. Last year, we had Schering-Plough Corp. v. Intron/Temodar Consumer Class Action, a putative class action we’ve previously covered. In that case, the court dismissed a third-party payor (TPP) class action for failure to state a claim where…
Loser Pays: Cost-Shifting In The Third Circuit
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OK, we admit it. The title was a bit of a tease, and we realize that any plaintiffs’ lawyers who read no further may flood us with comments like “where do you think we are – England?” So just to be clear: this post does not talk about a successful defendant recovering attorney’s fee awards,…