A mere two weeks ago, we praised a California federal court for dismissing preempted claims against a prescription drug manufacturer and not giving the plaintiff a third chance to plead a non-preempted claim. We noted that allowing three strikes seems to be the default rule on serial amendments in response to motions to dismiss or
We recently became aware of a legal podcast comment about the incompatibility of medical monitoring claims and the availability of equitable relief (at least in federal court) under Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999).
Whodawhat?
That was our initial reaction. But we took a look anyway
We’ve wondered if the widespread use of generative AI was going to produce an increase in the filing of pro se complaints and a marked change in their content. While the results are preliminary, at least one study shows a significant increase in pro se filings following the general availability of AI tools. And our own anecdotal experience suggests that, with the benefit of AI, pro se filings are moving from handwritten one-pagers to lengthy and more sophisticated complaints.
If AI is helping pro se plaintiffs prepare more sophisticated pleadings, we would hope that courts would become less deferential. After all, if generative AI helps pro se litigants bring their claims on a more level playing field, and if they’re bombarding courts with complaints, shouldn’t we see an end to the type of judicial indulgence in favor of pro se plaintiffs that leads to bizarrely pro plaintiff results? While we will continue to hold out hope, today’s case is an example of a court giving a pro se plaintiff the benefit of the doubt and, unfortunately, potentially expanding Texas product liability law into enterprise software.
Continue Reading Pro Se Blues in Texas
We’ve only discussed Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), a couple of times. Shady Grove, displaced – in federal court – a variety of state-law limitations on class actions because those restrictions were at odds with Fed. R. Civ. P. 23, and in federal
The day before this post went live there was a retirement ceremony for Judge Jon P. McCalla, the federal district judge for whom we clerked three decades ago. After serving as an Army officer in the Vietnam War, Judge McCalla got his J.D. from Vanderbilt and clerked for Judge Bailey Brown of the Western District
For the decades that we have been handling drug and medical device product liability cases, it has been a given that we wanted to make it clear that our clients did not provide medical care or healthcare directly to patients. For one thing, unauthorized practice of medicine would be bad. Also, when dealing with prescription
Bad fact patterns sometimes make bad law. And sympathetic plaintiffs who experience unfortunate outcomes can lead to decisions that stray from established precedent. Today’s decision from the Northern District of Oklahoma addresses a sad fact pattern, but the court conducted a rigorous Erie analysis and concluded that the Oklahoma Supreme Court would not recognize a duty that pharmacies must fill prescriptions. Scholl v. Walgreens Specialty Pharm., LLC, 2025 WL 950866 (N.D. Okla. Mar. 28, 2025).
Continue Reading Federal Court’s Erie Analysis Concludes That Pharmacies Do Not Have a Duty to Fill Prescriptions in Oklahoma
Public policy favors scientific and medical research. So do we. While the theories of various claims asserted against sponsors of medical research—and the reasons for rejecting them—vary greatly, the underlying incentive to promote good research certainly plays a role in protecting those that sponsor and conduct medical research from virtually unlimited liability for alleged
This is from the Holland & Knight side of the Blog only.
If you have followed the Blog, then you will know that we have long touted the importance of Erie deference by federal courts sitting in diversity. We have also questioned the expansion of tort law to allow governmental entities to use public nuisance to shift the costs of governmental services to private entities without calling it a tax. We have even discussed the issue of abrogation of common law claims, which can be seen as a lingering source of unchecked liability, when a state enacts a product liability act. For various reasons, however, we have largely declined to comment on the use of public nuisance as the primary theory for governmental entities as plaintiffs in opioid litigation. Today’s post is an exception, and it deals with a pretty significant decision, which we think is overdue.
Continue Reading Ohio Does Not Recognize Public Nuisance Claims For Products
This is from the non-Dechert part of the Blog.
Over the years, the Blog has had many, many posts related to the issue of whether Pennsylvania recognized any form of strict liability in product liability actions against prescription medical products. In addition to the fact that several of the principal authors of the Blog have