A case we reviewed a couple of months ago came to mind recently, not only because of its result, but also because how long it has been kicking around in our federal court system, trapped in an MDL. What refreshed our recollection? As regular blog consumers have read this week, the annual ACI Drug
The last time we looked into Bueno v. Merck, it was anything but bueno. Taking the position that, “if there is a cause of action, there must be jurisdiction,” a misguided decision had held that a branded drug manufacturer could be haled to court under an innovator liability claim, despite the defendant having never sold anything to the plaintiff in the state. See Bueno v. Merck & Co., 626 F. Supp.3d 1154 (S.D. Cal. 2022). That decision made our bottom ten list in in 2022.
Two years later – and who knows how many $$$ spent in the interim – the result on the merits was incomparably better. All claims dismissed with prejudice for a variety of excellent reasons. Bueno v. Merck & Co., ___ F. Supp.3d ___, 2024 WL 3974754 (S.D. Cal. Aug. 27, 2024). Ditto for a companion case decided the same day. See Parker v. Merck & Co., 2024 WL 3974764 (S.D. Cal. Aug. 27, 2024).
Here’s what happened.Continue Reading Bueno and More Bueno
Depending on your age, today’s title may evoke images of Hayley Mills or Lindsay Lohan. We won’t ask you which. It can be your secret. But in an industry where remakes are rarely worth the price of admission, the Parent Trap is a rare exception, and we won’t fault you for liking both. Today’s parent
In this week when we celebrate the founding of our country, other than a case from Philadelphia, second best would be to talk about Virginia. It’s the home of the first English settlement, where the first Thanksgiving was held, and was home to eight U.S. Presidents. And drug and device defense lawyers have some pretty
We wrote recently that California’s courts have never met a case they did not like. We were speaking somewhat tongue in cheek of course, but still California remains a destination for litigation tourists trying to take advantage of laws and procedures that many view as plaintiff friendly. One bulwark against blatant forum shopping is personal jurisdiction under the U.S. Supreme Court’s Bauman and Bristol-Myers Squibb cases, the latter reversing the California Supreme Court, which restored some measure of discipline to jurisdiction over out-of-state defendants.
Another potential bulwark is choice of law. That is to say, even when a plaintiff sues in California, the applicable choice-of-law rules might compel the application of another state’s law, which could doom the plaintiff’s claims.
That is what happened this week in Nelson v. F. Hoffmann-La Roche, Inc., No. 21-cv-10074, 2022 WL 17259056 (N.D. Cal. Nov. 28, 2022) (to be published in F. Supp. 3d), where a Florida resident and Army veteran used a generic prescription drug while stationed in Kentucky and overseas and allegedly suffered complications. But he chose to sue in California. Why? Because the manufacturer of the branded version of the drug (not the generic version that the plaintiff actually used) was based in California at the time he filed (having relocated from New Jersey), and California is one of a very few states that allows innovator liability—i.e., holding an innovator/branded manufacturer potentially liable for a generic product that it did not make, did not sell, and from which it did not make any profit. Continue Reading Federal Judge In California Cabins Innovator Liability
When we say “bananas,” today’s case is actually about bananas, that herb people tend to call a fruit. It is also quite unusual and complicated. Because it also involves some tragic underlying events, our quips are done. A bit of etymology is warranted, though. We used the term “judge-made law” in the title and that
We have promised ourselves that we will stream this week’s “This Is Us” episode when we finish this blog post. We love this series beyond reason, and we dread its imminent demise, notwithstanding the title’s grammatical transgression. (We generally condition any sort of allegiance on correct use of predicate nominatives.) We are struck, over and
We heard the other day from attorneys involved in the MDL direct filing, choice-of-law case that we wrote about a couple of weeks ago, Looper v. Cook Inc. Engaging in this kind of dialogue is one of the joys of blogging, even when our friends and colleagues write to tell us we got
We have long thought that “direct filing” procedures in multidistrict litigation were a solution in search of a problem. We also think direct filing procedures in MDLs pose significant waiver risks without a corresponding upside. Alas, our inclinations were confirmed recently when the Seventh Circuit ruled that a mass tort defendant’s acquiescence to complaints filed
“Location, location, location” isn’t a mantra only for real estate agents. Location also matters to lawyers. In Axline v. 3M Co., 2021 WL 3411822 (8th Cir. Aug. 5, 2021), whether the Bair Hugger product liability case could go forward turned on the choice of law between Minnesota and Ohio. The Eighth Circuit affirmed the