We brought you yesterday an example of a district court using Rule 23(d) to order a curative action vis-à-vis a putative class, but not in a good way. In that case, a medical device manufacturer initiated a recall of certain lots and published recall information for patients, in coordination with the FDA. Some enterprising plaintiffs’
When we tell people what we do, we often get a response, from lawyers and non-lawyers alike, to the effect of, “so you do class actions.” The somewhat canned response is that “serial product liability litigations” or “mass torts” rarely involve certified classes other than settlement classes because individual factors in personal injury cases almost
Every once in a while, we find ourselves on a federal government corner of the internet, and we usually are surprised to discover (or are reminded) that these webpages often have materials that are worth knowing about, even downright useful, for our type of practice.
These sites are not always easy to navigate, however, so
Released in 1965 by the Miracles, “The Tracks of My Tears” is ranked by Rolling Stone as the “Greatest Motown Song of All Time.” Smokey Robinson’s lead vocals are pure silk, the harmonies ooze soul, and the guitar licks and strings tie it all together. The song and the Miracles helped spread Motown around the globe. Today’s decision about an artificial tears product won’t stack up against Smokey and the Miracles, but it hits a few chords worth sharing.Continue Reading Tracks of My Tears – Narrowing of Economic Loss Class Claims in Kentucky
Lately we have been thinking that perhaps nothing stirs a plaintiffs’ lawyer more than a product liability mass tort except an economic loss class action.
Why? Money, for one. Control, for another.
Much like the placement of a comma, differences in capitalization can affect meaning quite a bit. Take PrEP and PREP. The former refers to the use of certain antiviral medications for pre-exposure prophylaxis to HIV, which has been hailed as a paradigm shift in treating HIV. We recall that FDA was so impressed with
Growing up down in Georgia, Bexis used the phrase “a whole lotta nuthin’” frequently when encountering things (like the 1970s Underground Atlanta tourist trap) or people (like Lester Maddox, who governed the same way he rode bicycles) that didn’t impress him much. That’s the phrase that came to mind when we read In re E. I. du Pont de Nemours & Co. C-8 Personal Injury Litigation, ___ F.4th ___, 2023 WL 8183812 (6th Cir. Nov. 27, 2023). Indeed, the opening sentence of the du Pont opinion was: “Seldom is so ambitious a case filed on so slight a basis.” Id. at 81. And yes, du Pont was an appeal from yet another bizarrely pro-plaintiff MDL decision.Continue Reading A Whole Lotta Nuthin’
In stark contrast to the “MDL treatment” that the Valsartan plaintiffs received earlier this year, the decision in Post v. Amerisourcebergen Corp., 2023 WL 5602084 (N.D.W. Va. Aug. 29, 2023), was more mainstream. Class certification was denied for a variety of good reasons.
Unlike the result, the Post class action allegations, were relatively unusual. The members of the class were all patients of the same physician. Plaintiffs alleged that “defendants” “unlawfully made payments to [the physician] to induce him to misdiagnose” them so that they were eligible for the product at issue. Id. at *1 We’re not 100% sure, but only one of these “defendants” apparently was the product’s manufacturer. Plaintiffs sought “the return of every payment made from every source” for this treatment – essentially, they wanted after-the-fact (Post-hoc?) free medical care. Id. In addition, they demanded various damages for “invasion of privacy” and “negligence,” as well as punitive damages. Id.
And they wanted this all as a class action.
The Post reaction? No way.Continue Reading Post-Out Sticky Notes
In 1919, J. Edgar Hoover described Communism as a “conspiracy so vast” that it was impossible for the populace to comprehend it. The Palmer Raids and the first Red Scare soon followed.
That phrase echoed in our minds when we first read In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2023 WL 1818922 (D.N.J. Feb. 8, 2023). The Valsartan opinion was similarly mind-boggling in its scope. It certified not one, not two − but four class actions: one for economic loss, one for third-party payors (“TPPs”), and two for medical monitoring (“remedy” and “independent claim”). Id. at *3. Compare that to the state of class action precedent in product liability litigation not too long ago when we made this statement in 2007:
As far as we know, there has not been a single contested class action in product liability, personal injury litigation that’s been affirmed anywhere in the federal system in the decade since the Supreme Court put the kibosh on such things with its Ortiz and AmChem decisions. That’s not limited to just pharmaceuticals, that’s every kind of product that’s made.
Four in a single MDL order? These class certifications glommed together no less than 111 consumer and TPP subclasses. Valsartan, 2023 WL 1818922, at *24. These class certifications combined 428 different pharmaceutical products, produced and marketed by 28 separate defendants, with claims governed by the laws of 52 separate jurisdictions. There’s no way on earth that common issues could predominate over individual ones, or that this morass could possibly be tried to a jury.Continue Reading An Abuse of Discretion So Vast…. Our Long-Delayed Critique of the Valsartan MDL Class Action Certifications
We have often characterized preemption as one of the most powerful tools in product liability defense lawyers’ toolboxes. It also gets utilized effectively by lawyers defending against a variety of consumer fraud cases about FDA-regulated products. We have, for instance, covered a number of decisions where plaintiffs complained about a range of food labeling issues