Jurisprudence

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The Eleventh Circuit’s recent decision in Rosell v. VMSB, LLC, ___ F.4th ___, 2023 WL 3398509 (11th Cir. May 12, 2023), has nothing whatever to do with prescription medical product liability litigation, but defense counsel should know about it because is rejects one trick that plaintiffs in complex litigation use to claim appellate jurisdiction.  Specifically, it rejects the concept of “partial dismissal” under Fed. R. Civ. P. 41(a), as a tool to create a final appealable order following partial dismissal of an action.Continue Reading Plaintiff Cannot Create Appellate Jurisdiction Through Partial Dismissal

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Some things make sense only in the topsy-turvy, litigate-everything-to-death world of multidistrict litigation.  One recent example is In re Taxotere (Docetaxel) Products Liability Litigation, 2023 WL 2982464 (E.D. La. March 8, 2023), where MDL-related considerations led a defendant to oppose a plaintiff’s motion for voluntary dismissal with prejudice.

Why?  Think chess.  In MDLs the other side treats plaintiffs like pawns, regularly sacrificing them in the hope of putting one or more defendants in zugzwang (a chess term for forcing an adverse move).  That’s what happened in Taxotere. Continue Reading Only in an MDL….

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The first thing you learn as an appellate clerk is the importance of the standard of review.  If the review is de novo – purely legal issues – your judge will not defer at all to what happened below.  It’s a whole new (hence, de novo) ballgame. If the review is for abuse of discretion…

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We have decried several times plaintiffs’ tendency in prescription medical product litigation, particularly mass torts, to try to sue into submission their opponents in scientific debates.  This often takes the form of lawsuits alleging that journal articles, continuing medical education, and other forms of scientific discussion are actionable “misrepresentations.” We said some time ago:…

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In the coming weeks, there are sure to be many articles looking at what Judge Brown Jackson has written and what that might suggest about the future jurisprudence of the United States Supreme Court if she is confirmed.  We will not predict what will happen in confirmation.  We will, however, weigh in on what Judge…

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Great decision from the Paraquat MDL recently, rejecting public nuisance claims in the product liability context.  In re Paraquat Products Liability Litigation, 2022 WL 451898 (S.D. Ill. Feb. 14, 2022), involved what, in the herbicide context, is the equivalent of a prescription drug.  That product “is not available for purchase by the public or…

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MDL defendants in prescription medical product liability MDLs have been complaining for years about thousands of cases being brought without the slightest pre-filing vetting – “plaintiffs” who cannot establish that they ever actually used the products of the defendant(s) they have sued and/or who similarly have no proof that they suffered the injury(ies) as to…

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A little more than six months ago (June 21, 2021), the United States District Court for the District of New Jersey began enforcing its Local Rule 7.1.1, requiring disclosure of third-party litigation funding.  Local Rule 7.1.1 provides:

Within 30 days of filing an initial pleading or transfer of the matter to this district, including the

…

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There are two main questions that surround the issue of all-vaccinated juries in the COVID-19 era.  The first is can you seek to exclude non-vaccinated persons from the venire for cause.  The second is do you want to.  At just about every CLE program we attend these days, whether in person or electronically, where judges…

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Developments in the Rouviere v. DePuy litigation have already produced two of our blogposts.  Rouviere v. DePuy Orthopaedics, Inc., 471 F. Supp.3d 571 (S.D.N.Y. 2020), which we discussed here, produced one of the first major decisions of the COVID-19 pandemic on remote depositions as the “new normal.”  Then, Rouviere v. DePuy Orthopaedics, Inc.…

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn more about this book