Multidistrict litigations are big piles of wrong. Wrong incentives invite the wrong cases, the wrong rulings, and the wrong results. Plaintiff lawyers park weak cases in MDLs, counting on ultimately collecting money for cases into which they invested virtually no work. Courts encourage that dysfunctional conduct by doing everything possible to force settlements, even if
In a ruling that is contrary to Supreme Court precedent, the district court presiding over the Zostavax MDL recently held that federal law does not preempt a state-law design-defect claim based on the manufacturer’s failure to seek FDA approval of a different, purportedly safer vaccine.
Zostavax, a shingles vaccine, received FDA approval in 2006. The
We have been following the issue of potential product liability for software, including in connection with medical devices, for a while. Much of our attention, predictably, has been on FDA regulation of device software, including issues related to resistance to hacking to obtain information or cause harm. Like here, here, here, and
If drugs and medical devices undergo a product life cycle, so do drug and medical device litigations. We are currently laboring in the relatively early stage of a Multidistrict Litigation, where the court seems terrified of making any substantive decisions. We get no rulings. Rather, the parties are forced to listen to lectures about the
In general, people do not like to have to repeat themselves. It is unavoidable. Sometimes your audience is rightfully (or wrongfully) distracted. Sometimes you aren’t that clear. Sometimes you lose your zoom audio connection and have to start over. Sometimes you don’t notice your daughter’s earbuds are in and that she’s been watching a YouTube
The complaint in Robinson v. Ethicon Inc., Action No. H-20-3760 (S.D. Tex.) was filed in 2013. To put that in perspective, Amazon’s first Alexa-enabled device, the Echo, wasn’t on the market. There’s a good chance you weren’t running your phone on 4G yet. And, if you were using earbuds with your phone, you were
As we age, we sometimes forget how things used to be. It is not just age-related deterioration of the synapses in our hippocampi. (We do question why hippocampi and hippopotamuses are the preferred plural forms these days and why more anatomic structures are not named for things like seahorses.) There is also a recency effect.
It’s football season! That means beautiful fall weather, tailgating, pots of chili, rooting your favorite team to victory, and wallowing in their losses. It’s Army v. Navy and Ohio State v. Michigan. It’s Packers v. Bears and Steelers v. Ravens. If you are a true fan of the game, it doesn’t matter that in a
We write this as we prepare to leave for an overseas trip. We have our N95s, our face shields, and our vaccine card, along with a bit of apprehension and a large measure of giddy gratitude. It has been a long eighteen months (and counting). We’ll fill in some details next time, but we’ll sign
We are watching the post-MDL-remand Bard IVC filter litigation with interest. It bears some resemblance to the Bone Screw litigation of the late 1990s/early 2000s (except in Bone Screw, there was no MDL settlement) in that the targeted defendant is engaged skirmishes across the country. In mass torts, the plaintiffs have the benefit of