We have blogged several times about the somewhat esoteric issue of whether intangible items – chiefly computer software, website algorithms, and other electronic information – is treated as a “product” for purposes of imposing strict liability on their creators. It’s an interesting topic; Eric recently wrote a paper on it, and Bexis is putting together a “white paper” for the Product Liability Advisory Council on the same subject. From these exercises we concluded that a 50-state survey on intangibles as “products” for product liability purposes would be both doable and useful.Continue Reading How the Fifty States View Electronic Data as a “Product”
First Amendment
Agree To Disagree – Don’t Sue the Other Side of a Scientific Dispute into Silence

Time and time again, we have opposed efforts by one side of a scientific dispute – typically involving a prescription medical product – to attempt to sue the other side of that dispute into silence. We came to that position through the crucible of litigation, since plaintiffs in the Bone Screw litigation sought to sue a variety of medical societies because they supported the (at the time) off-label use of bone screws for pedicle fixation. We have tried to be consistent.Continue Reading Agree To Disagree – Don’t Sue the Other Side of a Scientific Dispute into Silence
Not An Early April Fools’ Day Joke: State Still Pushes Its Dumb Ivermectin Law

About two months ago, we marveled at the notion that challenges to facially neutral state and local government vaccine requirements were still percolating through the legal system. We probably should not have been surprised by the persistence of frivolous litigation. After all, our day job entails defending litigations that can last years longer than they…
Ninth Circuit Dissent from Denial of En Banc re Injunction against Prop 65 Lawsuit: Sturm und Drang und Wrong

Like most judicial clerks (and, for that matter, judges) we found writing dissents more fun than writing majority opinions. Dissents free one from the need to articulate a consensus. Moreover, since a dissent does not establish a precedent that others must at least pretend to follow, the dissent’s author can be less precise and can let the rhetorical fireworks fly. To reverse the Spider Man rubric, with lack of responsibility comes great power to write colorfully.
We clerked on the Ninth Circuit. The Ninth Circuit is often unjustly maligned. And yet the fact is that the Ninth Circuit more often than not gets things right. Put another way, not every Ninth Circuit dissent hits the mark. We certainly do not agree with the dissent to the denial of rehearing en banc in California Chamber of Commerce v. Council for Education and Research on Toxics, 2022 WL 14725243 (9th Cir. Oct. 26, 2022). But it is a fun read.
The underlying Ninth Circuit decision enjoined certain Proposition 65 litigation on first amendment grounds, and we discussed that decision last May. Here is a brief refresher: Proposition 65 requires postings of warnings about substances “known to the state [of California] to cause cancer.” You see those warnings pretty much everywhere in California. In truth, the warnings are so ubiquitous as to be useless. Continue Reading Ninth Circuit Dissent from Denial of En Banc re Injunction against Prop 65 Lawsuit: Sturm und Drang und Wrong
Dobbs Would Likely Have Significant Impacts On Drug And Device Companies

Despite our use of plural pronouns, almost all of our posts come from a single author. We occasionally have guest posts by multiple authors or a post that pairs one of us with a subject matter expert. For this post, however, all seven authors of the Blog are joining together.
We are just simple defense…
Ninth Circuit – First Amendment Prevails Over Prop 65

California’s Proposition 65, which has spawned litigation over scientifically questionable “known to the state [of California] to cause cancer” warnings on such everyday products as cola drinks, coffee, beer, and soy sauce, see Riva v. Pepsico, Inc., 82 F. Supp.3d 1045, 1062 (N.D. Cal. 2015), took one on the chin recently in the Ninth Circuit at the hands of free speech under the First Amendment.
We can’t say it was unexpected – indeed, Prop 65 was one of the targets of the First Amendment’s prohibition on governmentally compelled speech that we identified in our 2019 post on American Beverage Ass’n v. City & County of San Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc) (“ABA”). And lo it has come to pass.Continue Reading Ninth Circuit – First Amendment Prevails Over Prop 65
Fourth Circuit Upholds Restrictions on Plaintiff Lawyer Advertising in West Virginia

We want to start by emphasizing the word restrictions. The law at issue in West Virginia was not a ban on plaintiff lawyer advertising, nor could it be. Since Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the First Amendment’s protection of truthful and non-misleading commercial speech extends to lawyers. Lawyers,…
Sign, Sign, Everywhere A Sign . . . Can’t You Read The Sign?

This past weekend, there was an NCAA Division I clash of athletic teams ranked #5 and #7, respectively, that included two children of two different authors of this Blog. To make things even weirder, one athlete is (cisgender) female and one athlete is (cisgender) male, and they come from opposite ends of the country, although…
Science Articles Marked by Possible Flaws but not Fraud Cannot Constitute Trade Libel

Pacira Biosciences, Inc. v. American Society of Anesthesiologists, Inc., 2022 WL 336585 (D. N.J. Feb. 4, 2022), is not a product liability opinion. Instead, it occurs in the context of a motion to dismiss a trade libel case brought by a pharmaceutical company. The Pacira court decided that the truth/falsity of scientific ideas published…
Protecting A Veterinarian’s Speech: A Model For Communications On Off-Label Use?

Way before we were lawyers, we read a good chunk of the writings of James Herriot, the nom de plume of a rural English veterinarian who chronicled his exploits in helping All Creatures Great and Small (the title of a movie and TV series about him). The veneration of his seemingly altruistic and tireless work…