Speaking of the United States’ newly ratified Constitution, Benjamin Franklin wrote in 1789: “in this world nothing can be said to be certain, except death and taxes.” We would like to add to this list another certainty—summary judgment in a drug case without expert proof of general causation. So, when the court excluded all of
One of those experts was plaintiff himself—an emergency room doctor with a law degree. We all know what they say about lawyers who represent themselves. And that applies equally to doctors who try to act as their own causation experts. Add to that destructive testing after telling defendant no product existed and four more unreliable
This is our second go round with Vardouniotis v. Pfizer, Inc., Case No. 152029/2019 (N.Y. Sup.). When we posted about the court’s decision on defendant’s motion to dismiss, we were resigned to shrug our shoulders and accept that “nothing’s perfect.” It’s two years later and we’re still shrugging.
After the court allowed plaintiff’s negligence; gross
The California Supreme Court issued its widely anticipated opinion on the learned intermediary rule the other day, and the opinion is worth the wait. Based on the oral argument (which we reported on here), we did not expect the Supreme Court to enact a fundamental change to the learned intermediary doctrine, and the Court
This post is from the non-Reed Smith, non-Dechert, and non-Holland & Knight side of the blog.
We have covered the ranitidine litigation before. As we explained in prior posts (including here and here), plaintiffs allege that ranitidine, the active ingredient in Zantac, breaks down into N-Nitrosodimethylamine (“NDMA”), particularly at higher temperatures. NDMA is a known carcinogen and a ubiquitous substance present in the environment and in all manner of foods including bacon, beer, and cheese. Readers will remember that in a sweeping, 341-page opinion, the MDL court cut the head off the federal Zantac litigation by excluding plaintiffs’ experts. But other parts of the snake keep slithering. Continue Reading Delaware Zantac Court Fails to Keep the Gate
This post is not from the Butler Snow part of the Blog.
The plaintiff in Sheinfeld v. B. Braun Medical, Inc., 2024 WL 635483 (Mag. S.D.N.Y. Feb. 1, 2024), adopted 2024 WL 1075329 (S.D.N.Y. March 12, 2024), was representing himself (“pro se” in legal Latin). Why was that?Continue Reading There’s a Reason Some Plaintiffs Are Pro Se
We observed oral argument the other day before the California Supreme Court in Himes v. Somatics, a case that places California’s learned intermediary doctrine squarely in the spotlight. A learned intermediary case before the California Supreme Court? For your ever-vigilant DDL bloggers, that is like Thanksgiving and Christmas wrapped into one!
Who will be
Alabama has always had some rather unusual jurisprudence. In product liability, the Yellowhammer State doesn’t have negligence or strict liability, but rather a hybrid called the Alabama Extended Manufacturers Liability Doctrine (“AEMLD”). See Casrell v. Altec Industries, Inc., 335 So.2d 128, 132-33 (Ala. 1976). More recently, the Alabama Supreme Court twice adopted the extreme pro-plaintiff innovator liability theory in Wyeth, Inc. v. Weeks, 2013 WL 135753 (Ala. Jan. 11, 2013), withdrawn and superseded, Wyeth, Inc. v. Weeks, 159 So.3d 649 (Ala. 2014). On that occasion, the Alabama legislature overruled the court. See Ala. C. §6-5-530. More recently than that, the same court authorized plaintiffs to perjure themselves and claim that they would have ignored their doctors’ recommendations in order to claim causation in learned intermediary cases. Blackburn v. Shire U.S., Inc., ___ So.3d ___, 2022 WL 4588887, at *11-12 (Ala. Sept. 30, 2022). Most recently, and most notoriously, the Alabama Supreme Court declared frozen embryos to be people – at least for the purposes of tort law. LePage v. Center for Reproductive Medicine, P.C., ___ So.3d ___, 2024 WL 656591, at *4 (Ala. Feb. 16, 2024). Who knows? By 2030, Alabama might attempt to count blastocysts as “people” for purposes of the census – although not for tort purposes, since the legislature appears to have stepped in again.
We read another bizarre – if not nearly as notorious – Alabama law decision recently. Ahmed v. Johnson & Johnson Healthcare Systems, Inc., 2024 WL 693078 (S.D. Ala. Feb. 20, 2024), reconsideration & certification denied, 2024 WL 947447 (S.D. Ala. March 5, 2024). What’s bizarre about it? It allowed a plaintiff in a medical device product liability case (hip implant) get to the jury without any medical expert testimony on causation. Id. at *16 (entitled “Summary Judgment is not Required on All of Plaintiff’s Claims Even Though She Offers No Expert Evidence Regarding Medical Causation”).Continue Reading Another Weird Alabama Decision
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