Bespoke makes us think of tailoring, which makes us think of London’s Savile Row, which makes us think of Annie’s You’re Never Fully Dressed Without a Smile (“who cares what they’re wearing on Main Street or Savile Row”). Which as it turns out is perfect for today’s case about a plaintiff who wanted the court
This post is from the non-Reed Smith, non-Dechert , and non-Holland & Knight side of the blog. Everyone else is involved.
The Good, the Bad, and the Ugly is a classic Clint Eastwood spaghetti Western where even the Good may not be all good. In California state court, a demurrer sustained is a defense win, right? Although there are some bright spots, In re Ranitidine Cases is one of the ugliest defense wins we have seen in a while, providing leave to amend and a roadmap for further expansion of the Gilead duty-to-innovate.Continue Reading Post-Gilead Heartburn in the California Ranitidine Litigation
It seems like once every couple of weeks, we see a story about some plaintiff (such as this one) suing, or threatening to sue, a defendant product manufacturer over some product that, according to the plaintiff, “the company should have recalled sooner.”
That’s garbage.
There is no such claim. Rather failure-to-recall theories are
For many years, even before the Supreme Court picked up the ball, we have been arguing that “stop selling” theories of liability for alleged injuries from prescription drugs should not be viable. This is not just a preemption issue. Basic product liability principles do not square easily with liability contingent on developing one drug
We say today’s case is about SIRVA (shoulder injury related to vaccine administration), but plaintiff tried her best to run from that allegation in her opposition to defendants’ motion to dismiss. That’s because a SIRVA case runs up against not only a preemption obstacle, but also serious duty and causation barriers. But since the court
Drug manufacturers are not insurers against injury from or while taking medications. Neither are distributors or pharmacies. Just because a patient experiences a complication while taking a medication, including the very condition the medication is supposed to help prevent, does not mean that some person or entity should be liable to the patient for her injuries. Sometimes, there is no fault or liability to be found. We do not think these are controversial principles, but we find that they apply to more than a few of the cases giving rise to the decisions about which we expound.
We also find that missing facts from complaints can speak volumes. Similarly, when a plaintiff waits until the third complaint to add case-specific factual allegations that should have been there from the start or when factual allegations pop in and out of serial amendments you have to question the basis for those allegations. At least we do. As inveterate curmudgeons, we tend to think bare-bones, boilerplate allegations are unlikely to be supported if the case gets to the merits. Of course, part of the game for some plaintiffs is to get past pleadings and hope the defendants opt for settlement instead of paying the costs of defense. The Twombly and Iqbal decisions tightened pleading standards, and thus improved the chance of success on motions to dismiss in federal court and some states have followed along. The hole, and source of our periodic grumbling, is how often dismissals are without prejudice and accompanied by leave to amend. Too often, it seems that the provision in Fed. R. Civ. P. 15 that courts “should freely give leave when justice so requires” leads to leave even when it should be obvious that amendment will be futile, not to mention a waste of judicial resources.Continue Reading Five Strikes Needed To Dismiss A Questionable Case
We have posted twice before about decisions that reject duty-to-train claims under the rubric of “educational malpractice.” Now Pennsylvania has joined the party. Grady v. Aero-Tech Services, Inc., 2022 WL 683720 (Pa. Super. March 8, 2022), an unpublished, but citable, decision of Pennsylvania’s major intermediate appellate court, applied Pennsylvania’s prior precedents that reject educational
A post-sale duty to warn is almost oxymoronic. If you think about a typical warnings case, the focus is on whether the manufacturer/seller had notice of a potential risk before the product left its control (or prescribed to the plaintiff), and if so, whether that risk was adequately conveyed to the plaintiff. The question we
In our 50-state survey on failure to report claims, we described Missouri as an “up in the air” state, with courts on both sides of the issue failing to cite or consider prior significant precedent. Now the Eastern District of Missouri has weighed in bringing the issue a little closer to the ground.
In Schnulle