One slushy morning this week, we found ourselves searching for our favorite black duck boots. We found one and put in on, then, after much rummaging in the dark recesses of our closet, found a second. At this point, we were on the edge of missing our train, so we put on the second shoe
Plaintiffs in (mostly) prescription drug cases have tried, with decreasing success, to limit the scope of implied impossibility preemption under the Mensing/Bartlett line of supreme court precedent to generic drugs. It’s not a particularly satisfying rationale, but the simple claim that “those were generic drug cases” did at least convince some courts that
This post is from the non-Reed Smith side of the blog.
If you know this blog, you know we leave no stone unturned when it comes to preemption. As far as we know, Greager v. McNeil-PPC, Inc., 2019 WL 5549524 (N.D. Ill. Oct. 28, 2019) is a preemption issue of first impression. Plaintiff alleged she
As we mentioned in our recent Preemption Teaser post, last month’s concurrence in denial of certiorari in Lipschultz v. Charter Advanced Services (MN), LLC, ___ S. Ct. ___, 2019 WL 5300908 (U.S. Oct. 21, 2019), provides an indication that, at least to some extent, Justice Thomas might have found a kindred spirit of sorts
One of the more peculiar things about Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019) (“Albrecht”), is the almost off-hand way that the majority (made up mostly of justices that have opposed preemption in closer cases) wandered away from the procedural preemption issues that the Court was
On our office bulletin board, we keep a post-it listing the states we have not yet visited. We are down to ten, and we expected to cross Oregon off after a deposition last week. But our deponent moved from Bend, Oregon to St. George, Utah. We’ve been to Utah lots of times, and were annoyed
In a significant preemption decision clipping the wings of California consumer protection plaintiffs, two identical decisions: Borchenko v. L‘Oreal USA, Inc., ___ F. Supp.3d ___, 2019 WL 3315288 (C.D. Cal. July 18, 2019), and Borchenko v. L‘Oreal USA, Inc., 2019 WL 3315289 (C.D. Cal. July 18, 2019) (differing only by docket number, as
It hasn’t happened yet, but just as the Supreme Court originally did with Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), the Court issued an order on June 24, asking for the Solicitor General’s views in Avco Corp. v. Sikkelee, No. 18-1140. The Order is on SCOTUSBlog, here
We take every chance we can get to drive nails into the coffin of the Ninth Circuit’s spectacularly wrong opinion in Stengel v. Medtronic. That’s the case where the court held that federal law did not preempt negligence claims alleging that the defendant medical device manufacturer failed adequately to report adverse events to the
Just in. United States Supreme Court rules unanimously in Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290, slip op. (U.S. May 20, 2019) (“Albrecht”), that the Third Circuit got it wrong in In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268 (3d Cir. 2017). However, the majority opinion,