Another year down (and only one more to go for Bexis), and that means, in addition to dreidels, creches, and Santa Claus, it’s time for our annual top ten best prescription medical product liability litigation decisions. As we’ve pointed out before, for an opinion to be eligible for our annual top (or bottom) ten lists
We warned everyone, but there is no sense beating a dead horse (or bear, or whale). So we’re getting right to the unpleasant business of discussing the bottom ten worst prescription medical product liability litigation decisions of 2024. And we stress both “product liability” and “litigation.” Otherwise, we’d have to include Harrington v. Purdue
This guest post is from the colleagues of our Butler Snow bloggers, written by Beth Roper, Megan Donaldson, and Denise Lee. It first appeared in their firm online publication “Pro Te Solutio.” Bexis read it and thought it would make a worthy addition to the Blog, and they graciously agreed. Our authors collaborated to collect the law from all 50 states on offers of Judgment. As always, our guest bloggers deserve all the credit (and any blame) for their efforts.
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Most states have an offer of judgment provision, and many of them are patterned after Federal Rule of Civil Procedure 68 (Maryland, Illinois, New Hampshire, Ohio, Pennsylvania, and Virginia are the exceptions without such provisions). Unlike Fed. R. Civ. P. 68, some states allow either party—not just the defendant—to make an offer of judgment. Even more significantly, a few states also allow a rejected offer to serve as an independent basis for an award of attorney’s fees. Federal courts in diversity cases do not always apply state statutes, but in some cases, these statutes have been deemed substantive and have been applied in federal court. See Spencer v. Ottosen Propellar & Accessories, Inc., 2019 WL 1090776, at *2 (D. Alaska Jan. 15, 2019)) (holding Alaska R. Civ. P. 68 was substantive law and thus to be applied in federal cases based on diversity jurisdictions); Zamani v. Carnes, 2009 WL 2160569, at *3 (N.D. Cal. July 20, 2009) (“Although [Cal. Code. Civ. P. 998] is a state rule, offer of judgment rules appear to be ‘substantive’ for Erie purposes.”); Am. Home Assurance Co. v. Weaver Aggregate Transport, Inc., 89 F. Supp.3d 1294 (M.D. Fla. 2015) (applying the Florida’s offer of judgment statute); Wheatley v. Moe’s Southwest Grill, LLC, 580 F. Supp.2d 1324 (N.D. Ga. 2008) (applying Georgia’s offer of judgment rule).
Recovery of attorney’s fees is one of the most significant factors that increases the value of making an offer of judgment. In this survey, we first address states that allow attorney’s fees after a rejected offer—although some of these statutes only allow for a limited fee collection. We then discuss offers of judgment that are more like Fed. R. Civ. P. 68, permitting awards of costs only.Continue Reading Guest Post − A 50 State Survey of State Law Concerning Offers of Judgment
Back in 2008, when Blog was less than two years old, we wrote a practical post entitled “Defense Amici – One Stop Shopping.” It arose from blogposts we wrote examining the arguments made by defense-side amici curiae in the Riegel, Kent, and Levine (twice) cases then pending in the
Another year bites the dust. We have just about made it through 2023, and while we have compiled our annual top ten best prescription medical product liability litigation decisions, we have the same sense with these as we did with last week’s bottom ten – in 2023 the favorable (as well as unfavorable) results from
Here we go again. The winter solstice is upon us. The days are short; the nights are long; and we have to rely on holiday lighting to keep the darkness – if not the cold – at bay. Speaking of cold and darkness, it is now time for us to look back upon the results
So, another year has passed. 2022 is in the books and the republic still stands, even if Roe v. Wade (and, soon, Twitter) do not. The COVID-19 pandemic – if not COVID-19 itself, which has instead become endemic – is largely over, except for some probably PREP Act preempted shouting.
For the Blog, the end of the year means that it’s time for our annual celebration of the Drug & Device Law Blog’s top ten decisions of the year. Some of these cases establish important legal principles, such as preemption, Rule 702 expert exclusion (don’t say Daubert), or the learned intermediary rule. Others are important because they affect large numbers of cases gathered in the increasingly dysfunctional federal multi-district litigation system. Some do both. In either event, these decisions make the legal world at least somewhat less dangerous for our clients and (not incidentally) more favorable for us defense lawyers.Continue Reading The Thrill of Victory – The Ten Best Prescription Drug/Medical Device Decisions of 2022
It’s that time of year again – time to review drug and medical device product liability litigation during 2022 and select the year’s ten worst decisions. Frankly, it’s not that hard to do – they reek to high heaven, so they are pretty easy to find. What’s harder is finding the motivation to write about decisions that we find profoundly distasteful for one reason or another. It’s fun to write about wins, but not about losses, so watch for decisions we might not have addressed previously.Continue Reading The Agony of Defeat -The Ten Worst Prescription Drug/Medical Device Decisions of 2022
2021 is almost over. Before 2021 – indeed, before the last half of 2021 – practically nobody other than stargazers had ever heard of “omicron,” unless someone was part of some fraternity or sorority. Now everybody has. The omicron viral variant demonstrates, once again in real time (as had the delta variant before it)
We’re tired – Tired of blatant lying about COVID-19 and the vaccines that can stop it. Tired of miserable, selfish people who won’t take basic, proven health precautions to combat COVID-19, endangering not only themselves, but everyone else as well. We’re tired of obstructionist politicians who cynically seek to prolong the pandemic for political ends.