Plaintiffs often like to sue in New Jersey, but that does not mean they always get what they want. The California plaintiffs in Serrano v. Campbell Soup Co. sued a beverage company in New Jersey, but the court rejected their New Jersey law claims and left them with only one California claim—and even then, only
Consumer Protection
Shrinking A Safe Harbor To Fit A Consumer Protection Class

In Hall v. Walgreens Boot Alliance, Inc., the Supreme Court of Washington considered a certified question from the Northern District of Illinois on an issue of Washington state law. No. 102829-6, 2025 Wash. LEXIS 145 (Wash. Mar. 20, 2025). The underlying case, a proposed consumer protection class action, involves the labeling of a certain…
Notorious Medicare Secondary Payer Plaintiffs Bounced Again

The MSP plaintiffs are at it again, and without success this time around. In MSP Recovery Claims Series LLC v. Pfizer Inc., 2025 U.S. Dist. LEXIS 38647 (D.D.C. Mar. 4, 2025), the group of law firms formed to file lawsuits under the Medicare Secondary Payer Act (hence the “MSP” in the various plaintiffs’ names)…
Pixels and Class Certification

We reported a few months ago on a California court that largely gutted a pharma-related privacy class action centered on the alleged disclosure of personal information through the use of computer pixels. Today we bring you another pixel case, but with a different outcome. In Jancik v. WebMD LLC, No. 1:22-cv-644, 2025 U.S. Dist.
Court Dismisses Plaintiff’s Spinal Cord Stimulator Consumer Protection and Negligence Claims

In the litigation strategy class we teach at Penn Law, we always set aside a few minutes to go over the Aristotelian rhetoric trilogy of logos, pathos. and ethos. As you probably already know, logos is the persuasive value of an argument’s logic, pathos is the power of sympathy, and ethos refers to one’s character…
On the New York Consumer Protection “Consumer Orientation” Element

New York’s consumer protection statute (N.Y. Gen. Business Law §§349-50) has a “consumer orientation” element that has largely prevented that enactment from being abused by P-side purveyors of prescription medical product class actions. We’re looking at how that works today.
The New York Court of Appeals held that, “as a threshold matter, plaintiffs claiming the…
Double Shot Thursday: Express Preemption Based on an OTC Drug Monograph and The Delaney Clause and Personal Injury Litigation— FDA Delists Color Additive Red No. 3, But Will It Be Enough to Attract Even Dyed-in-the-Wool Plaintiffs Lawyers?

Like the radio stations of yore did with songs, we offer up two related posts back-to-back instead of the usual one. We cannot offer a “favorite artist” as the source of consecutive songs, we offer two posts that relate to the legal implications of some of the typical things that FDA does and has been…
FDCA Preemption Delivers Sweet Win for Sugar Substitute Manufacturer
Debunking Another Stunningly Wrong MDL Expansion of Liability

In Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008), the court, applying California law, correctly “decline[d plaintiff’s] invitation to create a new exception” to that state’s privity requirement “that would permit [plaintiff’s] action to proceed.” Id. at 1023-24. “[A] federal court sitting in diversity is not free to create new exceptions” to state law limiting liability. Id. at 1024 (citing Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975)). D&Z held, as we’ve discussed many times:
A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.
423 U.S. at 4. And the Supreme Court has kept on saying this. Erie principles prohibit “federal judges” from “displac[ing] the state law that would ordinarily govern with their own rules.” Boyle v. United Technologies Corp., 487 U.S. 500, 517 (1988). “[A] federal court is not free to apply a different rule however desirable it may believe it to be, and even though it may think that the state Supreme Court may establish a different rule in some future litigation.” Hicks v. Feiock, 485 U.S. 624, 630 n.3 (1988).
But when updating the learned intermediary section of his treatise, Bexis came across a peculiar MDL holding, that because a defendant supposedly “cite[d] no cases” for the proposition “that the learned intermediary doctrine should apply to Plaintiffs’ . . . consumer protection claims” under the laws of California, Maryland, Illinois, and Florida, then “the learned intermediary doctrine should not apply” to claims brought by plaintiffs in any of these states. In re Natera Prenatal Testing Litigation, 664 F. Supp.3d 995, 1007-08 (N.D. Cal. 2023). The decision did not cite any precedent from any of these states (not even a trial court decision) affirmatively creating any exception to the learned intermediary rule for consumer fraud claims. Id.Continue Reading Debunking Another Stunningly Wrong MDL Expansion of Liability
Pennsylvania Federal Court Holds Online Marketplace Has No Duty to Inspect Goods

Although today’s decision involves a medical product, it focuses on an online marketplace rather than a drug or device manufacturer. And by online marketplace we mean the delivery service that has become ubiquitous in almost all of our lives—Amazon. The decision is significant because it finds Amazon, as a shipper rather than a seller, does not have an independent duty to investigate risks of the products it ships.Continue Reading Pennsylvania Federal Court Holds Online Marketplace Has No Duty to Inspect Goods