If you are of a certain age and are presented with a trio of items, we bet you sometimes add “Oh My” to the end of the list, as in Lions, and Tigers, and Bears-Oh My. Or, you think of other things that come in threes, such as the past and the present
Express Preemption
Roundup Preemption Decision Also Helps with FDCA

This post is not from the Bryan Cave side of the Blog.
The Third Circuit’s preemption decision in Schaffner v. Monsanto Corp., ___ F.4th ___, 2024 WL 3820973 (3d Cir. Aug. 15, 2024), is certainly a big deal in that litigation. As observed in the Bloomberg story about the decision, carried in the August…
N.D. Illinois Holds that Natural Water Class Action is all Wet

One of the break-through moments in the first year of law school is when your Contracts professor distinguishes actionable promises from mere “puffery.” Not every statement invites reliance. You cannot take every statement by a seller literally. The concept of non actionable puffery is the law’s way of telling us to grow up, to get…
Slam-Dunk Express Preemption Decision from the District of Arizona

Today we discuss an excellent express preemption decision from the District of Arizona, Skinner v. Small Bone Innovations Inc., 2024 WL 3639296 (D. Ariz. Aug. 2, 2024).
This decision involved the Scandinavian Total Ankle Replacement device (“STAR”). The STAR® Ankle is a Class III medical device subject to the Medical Device Amendments’ express preemption provision, 21 U.S.C. § 360k(a). This was Plaintiff’s second bite at the apple: The Court had already granted Defendants’ motion to dismiss but with leave to amend to attempt to state a parallel claim. See Skinner v. Small Bone Innovations Inc., No. CV-23-01051-PHX-MTL, 2023 WL 6318014, at *6 (D. Ariz. Sept. 28, 2023). After striking out in round one, Plaintiff fared no better in round two.Continue Reading Slam-Dunk Express Preemption Decision from the District of Arizona
Vermont Supreme Court Correctly Rejects Vaccine Claim Under PREP Act

The Vermont Supreme Court correctly applied the PREP Act last week to dismiss state-law claims arising from a COVID vaccine. See Politella v. Windham Southeast School Dist., No 23-AP-237, 2024 WL 3545717 (Vt. July 26, 2024) (to be published in A.3d). This was an easy case, and the PREP Act (aka the “Public Readiness…
Hip, Hip … Meh? N.D. Cal. Issues Mixed Bag of Rulings on Hip Implant Claim

We have often characterized judicial options as mixed bags, and a recent example of such a mixed bag can be found in Muldoon v. DePuy Orthopaedics, Inc., 2024 U.S. Dist. LEXIS 130020 (N.D. Cal. July 23, 2024). The plaintiff claimed injuries from a ceramic-on-metal hip implant. He alleged that friction and wear caused the…
It’s Hip To Be Preempted, Again

We are celebrating an anniversary today: We wrote our first blogpost on July 26, 2013. Eleven years and hundreds of posts later, we have two observations. First, we seriously need to update our blog profile photo. Or maybe we will just ride out our blogging years promoting the fiction that we are younger and fitter…
There’s a Reason Some Plaintiffs Are Pro Se

This post is not from the Butler Snow part of the Blog.
The plaintiff in Sheinfeld v. B. Braun Medical, Inc., 2024 WL 635483 (Mag. S.D.N.Y. Feb. 1, 2024), adopted 2024 WL 1075329 (S.D.N.Y. March 12, 2024), was representing himself (“pro se” in legal Latin). Why was that?Continue Reading There’s a Reason Some Plaintiffs Are Pro Se
Questionable California Cough Medicine Consumer Class Lingers

We have seen a number of consumer fraud class action cases brought over a range of fairly ticky tacky issues about OTC drugs and consumer products. California law and courts have been fairly favorable to these cases, which follow a pattern of a test plaintiff seeking to represent some large class because (s)he claims to…
Preemption and Recalls

We write a lot of briefs involving federal preemption and Class III medical devices with premarket approval (or “PMA”). Many of those briefs are in support of motions to dismiss lawsuits brought by attorneys who don’t regularly practice in the pharmaceutical and medical device product liability space.
The complaints filed by such attorneys often are…