t’s cold in New Jersey now. At the time this post hits the blog, it will be about 20 degrees, real feel 15 degrees in most of New Jersey. That’s too cold for this blogger. That’s an extra-large cup of coffee for the ride to work. That’s two-layers of clothing to walk the dog. That’s
If you have read more than a few posts on this Blog, then there is a good chance that you realize we have strong views on preemption. You might have also picked up that we think the way an issue is analyzed, not just the ruling after the analysis, matters. We have talked about the
Today is Friday, December 20, 2019, the last day on which many of our readers will be in the office before settling their brains for a long winter’s nap. We wish you all the very best, and our holiday gift to you today is a case about candy. Not just any candy. Today we bring
In a significant PMA preemption win, the Ninth Circuit rejected a plaintiff’s attempt, in a breast implant case, to base a “parallel” violation claim on nothing more than a res ipsa loquitur inference. Weber v. Allergan, Inc., ___ F.3d ___, 2019 WL 5090757 (9th Cir. Oct. 11, 2019). Weber involved a Class III breast
Did you remember that there can be express preemption for over-the-counter drugs? We sometimes forget too, but there are really good reasons for that. The Food Drug and Cosmetic Act includes the following provision:
[N]o State or political subdivision of a State may establish or continue in effect any requirement – (1) that relates to
We were in western Tennessee last week for an argument. We stayed at a beautiful and venerable hotel, most famous for twice-daily “march of the ducks.” Every morning, at 11 a.m. sharp (at least 30 minutes after guests have packed the lobby), an elevator door opens, and a uniformed “duck master” leads a perfect procession
On our office bulletin board, we keep a post-it listing the states we have not yet visited. We are down to ten, and we expected to cross Oregon off after a deposition last week. But our deponent moved from Bend, Oregon to St. George, Utah. We’ve been to Utah lots of times, and were annoyed
Our days of the week are mostly named based on Norse mythology, but our months are firmly Roman. May is named after the deity Maia, whose Roman version was honored for her role in the growth of plants. Her cousin Juno, the queen of the Roman gods, gave us the name for June. In their
We take every chance we can get to drive nails into the coffin of the Ninth Circuit’s spectacularly wrong opinion in Stengel v. Medtronic. That’s the case where the court held that federal law did not preempt negligence claims alleging that the defendant medical device manufacturer failed adequately to report adverse events to the
We’ve explained at length why Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), is an anachronism with respect to preemption, given the complete overhaul that Congress gave to §510(k). Still, strange things happen when preemption meets product liability, and there seems to be a conspiracy of silence among judges with respect to current FDA