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Bexis was a mere college freshman, and a Princeton football manager, on September 28, 1974.  In the first game of the season, Rutgers played Princeton at Princeton’s old (and rather decrepit) Palmer Stadium.  With about three minutes to go and Rutgers up 6-0, Rutgers fans swarmed the field and tore down both sets of goalposts.  When Princeton tied the game up with less than half a minute left, without goalposts we could not kick an extra point.  A two point conversion failed, and Rutgers escaped with a tie.

Not quite half a century later, Rutgers scored an actual win.  This time Bexis is pleased.  In Children’s Health Defense, Inc. v. Rutgers, the State University of New Jersey, ___ F.4th ___, 2024 WL 637353 (3d Cir. Feb. 15, 2024) (“CHD”), the Third Circuit affirmed the right of a publicly supported university to require COVID-19 vaccination as a prerequisite to its students’ in-person attendance.  We blogged about this outcome in the district court, and its precedential affirmance is even more significant.Continue Reading Tear Down the Goalposts – Rutgers Wins

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This post is only from the non-Butler Snow part of the Blog.

As our 50-state survey of the learned intermediary rule demonstrates, the rule now applies in all fifty states.  That includes statutes or high court decisions from 38 states and the District of Columbia, intermediate state appellate decisions from four more states, and federal appellate Erie predictions from seven more states and Puerto Rico.  All told, only three states lack binding appellate precedent approving of the learned intermediary rule:  Rhode Island, South Dakota, and Vermont.  All three of those states have federal district court precedent, and Rhode Island has unpublished federal appellate authority in addition.

Then there’s Oregon.  That state was an early adopter of the learned intermediary rule, see McEwen v. Ortho Pharmaceutical Corp., 528 P.2d 522, 528 (Or. 1974), but a subsequent decision held that the Oregon product liability statute, which basically adopted Restatement §402A in toto, meant that the rule did not apply in strict liability cases, because §402A did not reference the rule.  Griffith v. Blatt, 51 P.3d 1256, 1262 (Or. 2002).

But in Oregon strict liability litigation, or anywhere else that some plaintiff argues that for some reason the rule doesn’t apply, there is a backup argument – implied preemption.Continue Reading Preemption as a Backup for the Learned Intermediary Rule

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When we last reported on Beaver v. Pfizer, the plaintiff’s complaint alleging that the FDA “suggested” that the defendant’s drug be removed from the market had been dismissed because it was a preempted “stop selling” claim.  In any event, as we also pointed out, the plaintiff did not claim the condition that had purportedly

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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