When Summer temperatures rise, our analytical ambitions drop. Torpor sets in, and it sets in hard. It is no accident that it is in July and August when our posts are most likely to contain more pop culture than precedent. (Here is one of our favorite examples.) Meanwhile, this is also the time of
Every once in a while, we find ourselves on a federal government corner of the internet, and we usually are surprised to discover (or are reminded) that these webpages often have materials that are worth knowing about, even downright useful, for our type of practice.
These sites are not always easy to navigate, however, so
Here is the latest guest post from our Reed Smith colleague, Kevin Hara. He examines whether a prevailing party in litigation can recover, as “costs,” the expenses of witness depositions conducted remotely – a question that has arisen with increasing frequency since the COVID-19 pandemic prompted a general trend towards use of remote depositions. Since our clients could be on either side of this issue, Kevin’s research addresses both sides. As always, our guest bloggers deserve all the credit (and any blame) for their efforts.Continue Reading Guest Post – Are Remote Deposition Costs Recoverable by the Prevailing Party? Maybe, Yes, Maybe, No.
Last week we read a couple of online articles, including in the ABA Journal, about the unique questioning style of United States Senator John Kennedy (R- Louisiana) when it comes to federal judicial nominees.
By now, we all know how judicial nominees do the usual dance of saying as little as possible. Understandably, they decline to
Until now, the Bair Hugger MDL was known (at least to us) for two things: First, was the Eighth Circuit’s horribly lax application of the Fed. R. Civ. P. 702 standards for expert admissibility – a decision that we consider the worst drug/device decision of 2021. However, since then the federal judiciary’s Civil Rules Committee has adopted changes to Rule 702 that will, as of this December, overturn the Eighth Circuit’s weak approach to Rule 702. Second, the manner in which the Bair Hugger litigation began was unusually sketchy, as we detailed here and here.
Recently, however, the tawdry manner of Bair Hugger’s origin was matched by a specious attempt to disqualify the MDL judge. It’s obvious to us what is going on here. Both sides know that plaintiffs’ free pass on Rule 702 expires this December, when the rule amendments take effect. Assuming the expert testimony doesn’t change, the defendant essentially gets a do-over. So the Bair Hugger plaintiffs desperately desired that do-over to be decided by a different judge.Continue Reading Plaintiffs’ Judge Shopping Ploy Fails in Bair Hugger MDL
When we last commented on the Alliance for Hippocratic Medicine v. FDA litigation, back in April, the United States Supreme Court had just stayed what we described as “a truly ridiculous decision purporting to invalidate a number of actions taken by FDA with regard to mifepristone, the only currently marketed approved medication for medical abortion.”
Beginning – at least − with the awful decision in Schrecengost v. Coloplast Corp., 425 F. Supp.3d 448, 465 (W.D. Pa. 2019) (discussed here), plaintiffs seeking to overturn the longstanding Pennsylvania (since the 1940s) prohibition against strict liability in prescription medical product liability litigation have been systematically attacking the precedential weight
“To see a world in a grain of sand,
And a Heaven in a wild flower,
Hold infinity in the palm of your hand,
And eternity in an hour.”
– William Blake, Auguries of Innocence
We’ve long been enamored with the idea that sources of insight reside all around us. Before we did drug and
We always thought that the decade-old Nargol v. DePuy False Claims Act litigation was a particularly abusive misapplication of the FCA for legal reasons. As discussed here, the primary allegations asserted the same sort of “fraud on the FDA” claim that, when brought as a common-law tort claim, were held preempted in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001) – that the defendant purportedly misled the FDA to clear a §510(k) medical device, and that, as a result, every use of the device was ipso facto a false claim. No other causation needed. As the earlier post discussed, the First Circuit rightly put an end to that attack on FDA authority in United States ex rel. Nargol v. DePuy Orthopaedics, Inc., 865 F.3d 29 (1st Cir. 2017).
Then it turned out that a lot more was wrong with Nargol than just a bogus legal theory. The relators were p-side “experts,” Antoni Nargol and David Langton, who had access to documents from a couple of MDLs that targeted the defendant’s hip implant products. Critically:
Protective orders regarding confidential [defendant’s] product design information were issued in both of the multidistrict litigation cases (individually, the “ASR protective order” and the “Pinnacle protective order”; collectively, the “Protective Orders”).
United States ex rel. Nargol v. DePuy Orthopaedics, Inc., ___ F.4th ___, 2023 WL 3746534, at *1 (1st Cir. May 18, 2023).Continue Reading Dismissal of Experts-Turned-Plaintiffs’ FCA Case as Sanction Affirmed
Dupree v. Younger, ___ S. Ct. ___, 2023 WL 3632755 (U.S. May 25, 2023), has nothing whatever to do with drugs, or devices, or product liability, but we bring it to our readers’ attention because of what it has to say about federal appellate procedure. In Dupree, a §1983 action, the defendant sought summary judgment for the plaintiff’s alleged failure to exhaust administrative remedies – and lost. Then the defendant went to trial, and lost again. Id. at *2-3.
Then the defendant appealed. But – oops – the defendant did not raise the exhaustion issue in his post-trial motion under Fed. R. Civ. P. 50(a). Id. at *3. In the Fourth Circuit, failure to renew any issue, even a purely legal one like exhaustion, on a Rule 50(a) post-trial motion waived that issue. Varghese v. Honeywell International, Inc., 424 F.3d 411, 422-23 (2005).
Not anymore.Continue Reading Supreme Court Eliminates Appellate Procedure Trap for the Unwary