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
Back in the Pleistocene era when we toiled in law school, it seemed as if modern tort law developed as the result of a cross-continental game of ping pong played between the California and New Jersey courts. That still seems to be the case. Sure, there is the occasional, horrific verdict in flyover country that
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
Here’s another guest post by Reed Smith’s Dean Balaes. This one looks into a major (but not too recent) post-Albrecht drug preemption case. Can’t have too many of those! As always, our guest posters deserve all the credit (and any blame) for their writings.
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There is no hiding the fact that federal
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”
Not long ago, in our “Post-Albrecht Preemption Pummels Pradaxa Plaintiffs” post we discussed several recent favorable preemption decisions in product liability litigation involving that drug: Ridings v. Maurice, ___ F. Supp.3d ___, 2020 WL 1264178 (Mag. W.D. Mo. March 16, 2020), Adkins v. Boehringer Ingelheim Pharmaceuticals, Inc., 2020 WL 1704646 (Conn.
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)
Are moisturizing lotions cosmetics or drugs? They say on TV that lotions “lift and moisturize,” but does that move them into the “Drug” column of the “Food Drug and Cosmetic” ledger? We will hazard a guess that lotions are usually cosmetics, but what if the manufacturer adds an SPF factor? We would then say that