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…
We’ve discussed recently how a federal statute intended to allow suits against international terrorists has been misapplied as allowing suits against pharmaceutical companies. While there’s still hope for that dangerous deviation to be rectified, another federal statute, the Racketeering Influenced Corrupt Organizations (“RICO”) Act has been so widely abused that it is rarely, if ever used against its congressionally intended target – organized crime – in civil litigation.Continue Reading Another RICOdiculous Decision
A notorious class-action troll took it on the chin in MSP Recovery Claims, Series LLC v. Exactech, Inc., 2023 WL 4066635 (E.D.N.Y. June 14, 2023) (“MSPRC”). The troll’s modus operandi is to claim it has assignments of rights from certain fellow-traveling Medicare Advantage Organizations (“MAOs”) and try to turn those into class actions against targeted defendants – usually primary insurers. A search for this plaintiff’s name (MSP) appearing in the same opinion as this assignor (Summacare) pulled up no fewer than 23 hits on Westlaw.
In MSPRC, however, this prolific litigant tried to branch out beyond its usual Medicare Secondary Payor claims into more general third-party payor (“TPP”) litigation. That didn’t turn out well for the troll. Indeed, MSPRC looks like the litigation equivalent of the troll being knocked out with its own club.Continue Reading Medicare Secondary Payor Troll Bounced from MDL
Today’s case, Adams v. 3M Company, 2023 WL 2997420 (6th Cir. April 19, 2023), is not, strictly speaking, a drug or device case, but it is about constraining plaintiff lawyer attempts to aggregate litigation. That issue is near and dear to our flinty, defense-hack hearts. We never forego a chance to quote our old…
We have not written much on data privacy lately, but it remains a hot topic and one that changes rapidly as governments around the world (including numerous U.S. states) enact new data privacy laws. One thing that has not changed is the standard for proving a data privacy breach under California’s medical confidentiality statutes. For…
Almost a year ago we wrote a post called Learned Intermediary – Not Just for Failure to Warn about a California putative economic loss class action that was dismissed for failing to plead any allegations about whether the drug manufacturer had adequately warned plaintiff’s prescribing physician. Fast forward about 9 months and we posted about…
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…