Innovator Liability

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Whaley v. Merck & Co., 2022 WL 1153151 (S.D. Cal. April 12, 2022), is an ugly example of overly grasping personal jurisdiction permitted in the service of facilitating an even worse overreach by a state’s substantive law.  We’ve repeatedly criticized the substantive theory – innovator liability – because (among other things) it exposes manufacturers to liability for claimed defects in competing generic drugs from which the defendants received no benefit (quite the opposite), and did not control what their competitors did.  Indeed, innovator liability strays so far from traditional product liability that it creates personal jurisdictional problems – since the target defendant often has no jurisdictional contacts whatever with the forum state, since it didn’t even sell the product that allegedly caused (very attenuated) harm.…

Continue Reading California Court Overreaches on Personal Jurisdiction

That’s the main lesson of the emerging fiasco that is the ALI’s benignly named “Concluding Provisions” project for the Restatement Third of Torts.  While this title suggests that the Institute is merely engaged in routine “mop up” work, nothing could be further from the truth.  Any number of significant tort-related topics were not addressed by…

Today, we chronicle two more decisions from the Zantac MDL.  Once again, kudos to this MDL transferee judge for outstanding willingness to tackle legal issues, and decide them, at an early stage of the litigation.  Because we’ve gone through these issues before, here and here, we discuss these latest rulings in one post.

Chronicle …

Sometimes the DDL blog is ahead of the curve.  On more than one occasion we’ve advanced the idea that lack of personal jurisdiction should be a good defense to innovator liability in a post-BMS world.  After all, BMS held that there was no specific jurisdiction over a plaintiff’s claim just because the defendant allegedly…

When we were still (relatively) young lawyers, we defended Bendectin cases.  There was nothing wrong with Bendectin – the litigation produced Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court’s landmark decision on excluding bogus expert testimony, and numerous other decisions, state and federal, excluding “junk science.”  Nonetheless, Bendectin’s primary…