The recent decision in Mize v. Mentor Worldwide LLC, ___ Cal. Rptr.3d ___, 2020 WL 3602482 (Cal. App. July 2, 2020), demonstrates why California courts – particularly state courts – have such a poor reputation when it comes to product-related litigation.  In Mize, a combination of questionable reasoning, together with the state’s absurdly

Not long ago, an EPL (evil plaintiff lawyer) relayed to us that, based on reading our posts, another EPL had assumed we had a particular political view.  As we laughed at the notion, we pondered the issues of assumption and incomplete information.  Much like the old quip about what happens when you assume, many assumptions

The plaintiffs’ allegations in In re MDL 2700 Genentech Herceptin (Trastuzumab) Marketing & Sales Practice Litigation, ___ F.3d ___, 2020 WL 2781287 (10th Cir. May 29, 2020), weren’t safety related.  Rather, they sought damages for purely economic loss because the way the vials of Herceptin (a prescription biologic) were filled allegedly resulted in most

There was a time when we posted frequently about attempts to impose liability for injuries allegedly caused by the use of a generic prescription drug. Much of the attention has been directed to trying to pin liability on the company that developed the drug originally, even when the plaintiff took another company’s generic version. When

We’ve noticed quite a few prescription drug preemption decisions lately involving “newly acquired information.”  That’s because the Supreme Court doubled down in Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), on the boundary of impossibility preemption being set by a defendant’s ability to utilize the FDA’s “changes being effected”

The “fraud on the FDA” claim that the Supreme Court held preempted in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), was actually the most extreme form of a private plaintiff second-guessing the result of an FDA process classifying a regulated product.  Plaintiffs claimed that, because of purported “fraud” in the §510(k)