We’re not surprised by the preemption ruling in In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation, 2021 U.S. Dist. Lexis 100041 (D. Md. May 17, 2021), but that doesn’t makes us any less appalled.
First, here’s what happened.
This latest Birmingham Hip ruling was in preparation for
The SCOTUS decision in the Wyeth v. Levine case created much mischief in the field of preemption. The Court’s sloppy overstatement of the significance and availability of the Changes Being Effected (CBE) process breathed new life into prescription drug failure to warn cases that should have been safely interred at the pleadings stage. As bad
We’re old enough that we remember the pre-Daubert Bendectin litigation. Bendectin was the only FDA-approved drug indicated for nausea and vomiting from pregnancy. Yellow journalism (the National Enquirer) and scientific fraud (deliberately falsified scientific data) fanned a birth defect scare, which led to an avalanche of factually baseless litigation – Daubert was
The first three significant Zantac MDL decisions, which we chronicled here, here, and here, were all issued on December 31, 2020. Today’s installment, In re Zantac (Ranitidine) Products Liability Litigation, ___ F. Supp.3d ___, 2021 WL 76433 (S.D. Fla. Jan. 8, 2021), was issued this year. For those of you who
We offer a different take on preemption today. We have discussed on any number of occasions how the FDA’s regulation of drug warnings preempts (or should preempt) state-law tort claims purporting to impose different or additional warnings. But what if the alleged state-law duty is based on a public referendum or statute? Does that make
There are some basic rules for medical product liability litigation, at least as we—and the vast majority of courts—see it. One is that the manufacturer of the medical product that the plaintiff used and allegedly injured her is typically the right defendant. Part of what a potential plaintiff is supposed to do during the statute
This blog has discussed Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (2019), and its progeny on multiple occasions. We provided a quick take when Albrecht was issued; discussed the decision’s possible ramifications here and here; expressed consternation at certain parts of the decision; reported here and here on how
We lived through the AIDS epidemic – which is more than we can say for some of our friends. We were in law school when people started dying. Throughout our careers as junior lawyers AIDS was a death sentence. We attended memorials. We walked in AIDS walks. We’ve seen the AIDS quilts. Ask Dr. Anthony
When last we tuned into the In re Incretin-Based Therapies (“Incretin”) multi-district litigation, the Ninth Circuit had just undone a preemption-based dismissal – but only on procedural grounds. As we discussed, here, the Ninth Circuit avoided the merits, but ruled that the MDL court had erred in “rel[ying] on Buckman [Co.
The drive from our home to the Delaware courthouse takes no more time than the drive to the Philly courthouse. But those two courthouses are worlds apart. The Philadelphia Court of Common Pleas is plaintiffs’ heaven. Most judges there think everything should go to a jury, and most jurors there think heaps of money should