Implied Preemption

CPAP MDL Overinflates Plaintiffs’ Claims

By Bexis on December 4, 2023

Abuse of substantive law as a weapon to force settlement occurs so frequently in multidistrict litigation (“MDL”), that we’ve given it a name – “the MDL treatment.” The linchpin of the MDL treatment is that plaintiffs are allowed to take way more liberties with state law than the Erie doctrine allows. Readers can recall from our prior posts that both the Supreme Court and Third Circuit (to take the relevant example), view expansive federal court “predictions” of state law – and state tort law in particular – usurp the prerogatives of the states and are an abuse of power. Continue Reading CPAP MDL Overinflates Plaintiffs’ Claims

The Fiction Of Non-Preempted Pre-Market Design Defect Claims For Prescription Drugs

By Eric Alexander on November 17, 2023

As we emerge from our fourth month-long trial in a little over two years, we are sure that we have missed some recent legal developments. As good as this Blog is as a source for what is going on in drug and device product liability litigation, you do actually need to read it to absorb…

Drug Manufacturer’s Claims Against Compounding Pharmacy Held Impliedly Preempted by S.D. Tex. Notwithstanding Fifth Circuit’s Spano Decision

By Andrew Tauber on November 2, 2023

This post is solely from the non-Reed Smith side of the Blog.

A court within the Fifth Circuit has held that the FDCA impliedly preempts unfair-competition and consumer-protection claims asserted by a drug manufacturer against a compounding pharmacy. Despite generally rooting for drug manufacturers, we are okay with the decision, Zyla Life Scis., LLC v.

N.D. Cal. Sees No Standing or Merit in Eye Cosmetic Claims

By Stephen McConnell on October 25, 2023

Our best college era summer job was working as a staffer for the New Jersey State Senate. The Abscam investigation was ongoing, and it seemed that every week there’d be another empty seat in the Senate chamber courtesy of the FBI. Good times. We doubt we personally performed any services that were useful for Garden…

California Court Again Embraces Hindsight Claims

By Steven Boranian on October 13, 2023

We have been monitoring litigation involving tenofovir-based HIV medication for some time now. We reported a few weeks ago on oral argument in the California Court of Appeal, where the parties debated a novel “duty to innovate” under California law. We also gave you our view on the 2019 order that many say kickstarted these…

FDA’s Rules are FDA’s to Enforce

By Michelle Yeary on October 10, 2023

We can sum up the claim in Telebrands Corp. v. Luminas Int’l LLC, like this—hey court, it’s not fair that I’m following the FDA’s rules and my competitors are not, so you should force them to do so to even the playing field. 2023 U.S. Dist. LEXIS 179285 (S.D. Cal. Jul. 12, 2023). To…

SJS/TEN Case Survives Motion to Dismiss

By Stephen McConnell on October 4, 2023

We acquired our trial chops in the Central District of California, where we were an AUSA. We had a great time. We learned a lot. We have warm feelings for C.D. Cal. But we do not love all the decisions that come out of that jurisdiction.

Burton v. Abbvie, Inc., 2023 U.S. Dist. LEXIS…

Preemption Ends Appeal Of Dyspeptic Supplement Case

By Eric Alexander on October 2, 2023

We have often characterized preemption as one of the most powerful tools in product liability defense lawyers’ toolboxes. It also gets utilized effectively by lawyers defending against a variety of consumer fraud cases about FDA-regulated products. We have, for instance, covered a number of decisions where plaintiffs complained about a range of food labeling issues…

. . . Try, Try Again; But Enough is Enough

By Michelle Yeary on September 26, 2023

Is what the court finally had to tell plaintiff in Roshkovan v. Bristol-Myers Squibb Co., 2023 U.S. Dist. LEXIS 166742 (C.D. Cal. Sep. 19, 2023) in dismissing his second amended complaint as both preempted and inadequately pleaded. We posted about the dismissals of the original and first amended complaints on the same grounds here…

Contract Claim Based on Alleged CGMP Violations Held Impliedly Preempted

By Andrew Tauber on September 21, 2023

As defense attorneys who represent drug and device companies, we generally cheer when a state-law claim is held preempted by the FDCA. We are, however, not sure whether to cheer the decision we discuss today, Thogus Products Co. v. Bleep, LLC, 2023 WL 5607458 (N.D. Ohio 2023).

Thogus involved a contract dispute between a…

Drug & Device Law