Photo of Steven Boranian

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 liabilityi.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

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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

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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

Photo of Steven Boranian

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

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Bexis has just returned from a week’s vacation in Acadia National Park in Maine.  After being rained out for a couple of days due to a stray hurricane, he climbed four mountains in three days – the Precipice Trail up Mt. Champlain; the West Face Cadillac Mountain trail up that mountain, and the Jordan Cliffs/Deer

Photo of Stephen McConnell

In Knapp v. Zoetis Inc., 2021 U.S. Dist. Lexis 63783 (E.D. Va. March 31, 2021), the plaintiff alleged that administration of an equine antibiotic caused his horse, Boomer, to experience “persistent lameness” and permanent damage to the “musculature in his neck.” Boomer was not okay. His condition was far from stable.

The plaintiff claimed