Some of us on the Blog are veterans of the original vaccine wars – those that preceded the enactment of the Vaccine Act, 42 U.S.C. §§300aa-10, et seq. That litigation, involving DTP and certain other childhood vaccines, nearly destroyed this country’s ability to vaccinate its children against often deadly diseases – much to the delight of antivaxxers everywhere. After Congress acted in 1986, much to the delight of everyone else, the Act’s alternative compensation system, combined with its strong preemption provisions restricting post-compensation system litigation have largely restored the nation’s childhood vaccine supply to a sound footing. The Supreme Court did its part in Bruesewitz v. Wyeth LLC, 562 U.S. 223, 231-33 (2011), holding that the Vaccine Act preempted all design defect claims asserted by claimants who rejected Vaccine Act awards and sought to litigate their claims instead.
Consumer Protection
Interesting Pelvic Mesh Due Process Certiorari Petition

Readers may recall our dissection of the ridiculous application of offensive, non-mutual collateral estoppel in Freeman v. Ethicon, Inc., 2022 WL 3147194 (C.D. Cal. 2022). Ultimately, the thumb that Freeman put on the scale didn’t matter, because the defendant won at trial despite that handicap.
We described the prior adverse decision that formed the ground for the collateral estoppel claim as “factual findings entered by a state-court judge after a bench trial in earlier false-advertising and unfair-competition litigation.” That description doesn’t really do the prior decision (in)justice. That decision, People v. Johnson & Johnson, 2020 WL 603964 (Cal. Super. Jan. 30, 2020), decided an action filed by the California attorney general that had essentially converted the allegations that product liability plaintiffs had been making against the defendants’ pelvic mesh into the basis for a statewide civil action under certain California consumer protection statutes. Here is the result of that decision, in a nutshell:…
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N.D. Cal. Dismisses Baby Food Label Claims

Tonight, with great pleasure, we will hand out candy to tiny costumed neighbors – the three- and five-year-olds from across the street, who call us “Miss Rachel,” and the seven- and 10-year-olds from next door, who come over daily to play with the new puppy, among others. (Not too many others, we fear – we…
The Shelves Have Eyes

Okay, retail shelves don’t have eyes. We coined that phrase to mimic the title of the Wes Craven films featuring desert mutants and the horror they impose on unsuspecting travelers. We watched the original 1977 film The Hills Have Eyes while traveling a few years back and thought it was not that great. Imagine then…
NDNY Dismisses Energy Drink Fraud Case

Fraud via omission of facts is a popular plaintiff lawsuit theory, but many of those lawsuits themselves suffer from the omission of plausibility and specificity. In Womack v. Evol Nutrition Assocs., 2022 U.S. Dist. LEXIS 145754 (N.D.N.Y. Aug. 16, 2022), the plaintiff filed a purported class action alleging that a manufacturer of energy drinks failed…
Chocolate Ice Cream Fraud Plaintiff Gets Just Desserts
‘Premium” Vanilla Ice Cream Consumer Fraud Case Gets Plain Vanilla Dismissal

It is hardly a compliment to describe something as “plain vanilla.” It refers to the simplest version of something, sans any extras. It is ordinary. It is not special. It is dull. And yet vanilla can be a remarkable, complex flavor. Our favorite morning Starbucks cold double shot comes with vanilla. If we get a…
S.D. Ohio Dismisses Zostavax Class Action

Did you know that both LeBron James and Steph Curry were born in Ohio? So were Neil Armstrong, Halle Berry, Simone Biles, Thomas Edison, Dean Martin, Jack Nicklaus, and Steven Spielberg. (We once ran into – we mean literally – Dean Martin as he was launching himself out of a Beverly Hills restaurant. He was…
SDNY Dismisses Most of a Pelvic Mesh Lawsuit

It’s time for the Mesh Case of the Week. In Dupere v. Ethicon, Inc., 2022 WL 523604 (S.D.N.Y. Feb. 22, 2022), the plaintiff filed a lawsuit claiming injuries from pelvic mesh that had been implanted in her to treat stress urinary incontinence. The court ended up dismissing many of the causes of action. That…
Truthful Statements Cannot Form Basis for Consumer Fraud Claims

This post is from the non-Reed Smith side of the blog.
One would assume the title of this post to be a given. Afterall, the crux of a fraud claim is that the consumer was deceived or misled in some way. Therefore, truthful and accurate statements should not be grounds for consumer fraud claims. But…