Three times previously we have “reported from the front” on the federal government’s efforts to dismiss False Claims Act litigation – ostensibly (and often ostentatiously) filed in the government’s name – after the government has concluded that the particular case is more bother than it is worth. The most recent of those posts was late last year, and reported on Polansky v. Executive Health Resources, Inc., 17 F.4th 376 (3d Cir. 2021).
False Claims Act
Eleventh Circuit Disapproves Non-Intended Use Salami Slicing

The Orthopedic Bone Screw litigation would never have occurred – and Bexis might never have found his way to prescription medical product liability litigation – if not for the Kessler-era FDA’s ill-considered salami slicing of the “intended use” of that product. In that instance, the FDA had limited its cleared “intended use” to disc spaces…
Unscrupulous Former Experts’ Qui Tam Case Dismissed by D. Mass.
SDNY Dismisses False Claims Act Complaint Challenging FDA Approval of Manufacturing Plant

The defense response to so many plaintiff allegations amounts to: so what? What difference did the complained of conduct make? Think of medical causation. Or think of warning causation in the context of a learned intermediary. In securities cases or, closer to our DDL hearts, False Claims Act cases, the ‘so what’ arrives dressed in…
Latest Report from the Front

We’ve already provided two “reports from the front” about how the federal government is faring in False Claims Act cases where it has moved to dismiss actions over the objections of the relators supposedly pursuing recovery in the government’s name. Here’s a third one, about Polansky v. Executive Health Resources, Inc., ___ F.4th ___,…
Supreme Court Holds that the Violation of a Statutory Right Is Insufficient To Establish Article III Standing in a Damages Action
What To Make of the Dan Abrams Case?

The recent appellate False Claims Act (“FCA”) decision in Dan Abrams Co. LLC v. Medtronic Inc., ___ F. Appx. ___, 2021 WL 1235845 (9th Cir. April 2, 2021), has us scratching our heads. It’s like riding a legal roller coaster. Some parts are really high, and others are really low.
Bexis first ran across…
Spoliation Is A Two-Way Street, Or Should Be

We are careful when discussing discovery sanctions, particularly spoliation, for a simple reason. The companies we represent that make medical products tend to have allegations about failing to produce discoverable information in the course of the litigation against them. Indeed, there is a style of litigating against drug and device companies, and other corporate defendants,…
Update from the Front

Not long ago we brought you a report from the False Claims Act (“FCA”) front on how the government was doing with its attempts to prune back some of the worst abuses of FCA litigation – particularly the advent of “professional relators.” In that earlier post, we discussed the two major approaches that courts…
District of Massachusetts Calls Plaintiffs’ Experts on their Shenanigans

Plaintiffs’ experts do a lot of stupid things. We’ve dedicated whole posts to them – here and here, for example. Now we have another trick to add to their growing list of shenanigans – plaintiffs’ experts turn FCA relators. That’s right, two of plaintiffs’ experts from the DePuy Orthopedics hip implant litigation are trying…