We’ve been blogging now for more than four years. Our first substantive posts went up on November 15, 2006, and by now more than 1450 have followed those.
Frankly, even for us, it’s getting hard to find stuff.  And since we actually wrote all these blasted posts, and presumably remember at least some of what’s…

We hope all our readers had excellent holidays, didn’t get stranded in the snow (here on the US East Coast), and received lots of desired presents due to what the economic stats we’ve seen are saying has been a better than expected retailing season.  That is, it’s better than expected if you’re a retailer or a recipient.  For those of us who have to pay the bills … well, we won’t go there and ruin the good cheer.
Good cheer it is, too, as today’s post is devoted to our favorite drug/medical device judicial decisions of 2010.  There’ve been a raft of good decisions, although none from the United States Supreme Court, for all us practitioners on the right (in more ways than one) side of the “v.” to be thankful for.  Indeed, we confess that depending on the day, any of the first three cases could have been ranked as number one.  We’ve changed the rankings ourselves since we first started thinking about this list a couple of weeks ago.
So here are our best of 2010 – the decisions that had us happily typing away on “breaking news” and other posts throughout the year.
1. UFCW Local 1776 & Participating Health & Welfare Fund v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010).  Stick a fork in economic loss class actions derivative of supposed product liability defects – they’re done.  That’s what we thought when we first read this widely anticipated decision, which reversed the #2 worst decision of 2008.  Third party payers cannot prove reliance on a classwide basis even under what plaintiffs considered their last, best hope of a theory, RICO.  Try as they might, purveyors of class actions can’t escape the intensely individualized medical decisionmaking process that underlies any prescription of drugs (and presumably medical devices).  Whether it’s called “reliance” or “causation,” allegedly inadequate information must affect a doctor’s prescription decision, and the gambit of using TPPs as proxies doesn’t obscure that fact.  We ultimately put this Zyprexa decision first because of its broad implications for all of our clients, particularly if the result had gone the other way.  Unless the Supreme Court were to change class action law adversely in the pending Dukes case (unlikely), we don’t think there’s much of a future for class actions (economic loss or otherwise) based upon supposed safety defects in drugs.  We discussed the decision as breaking news here and in more detail here.
2. Bryant v. Medtronic, Inc., 623 F.3d 1200 (8th Cir. 2010).  Here, we had to decide whether to go with an industry-specific, or a state-specific case.  Then last week the Seventh Circuit forced our hand by dropping Bausch on us like a humongous lump of coal into our stockings.  That moved Bryant up because, if not for Bryant, the entire post-Riegel preemption model we’ve been advocating for two years might have been knocked down by one adverse circuit decision (shades of Mason).  But with Bryant as the first appellate decision, we’ve got a direct circuit split, with perhaps an avenue to the Supreme Court (and the Medtronic folks must be tearing their hair out watching their competitors mess up the law).  Anyway, Bryant demonstrates the power of preemption, affirming our #7 best case of 2009 and defeating an entire MDL at a stroke.  The opinion is great on preemption principles, particularly the interplay between express and implied Buckman preemption in parallel violation claims – something we’ve consistently advocated on this blog.  Bryant is an absolute must read for any PMA medical device defendant thinking about a preemption motion.  For good measure the Eighth Circuit also trashed the “suspect motives” behind the plaintiffs’ attempt to recuse the judge.  And to think, but for a fortuitously delayed settlement, Bryant almost never saw the light of day.  We rather gleefully blogged about Bryant here.Continue Reading Top Ten Best Prescription Drug/Medical Device Decisions Of 2010

We’re doing it again. At the end of the year, we like to look back over where we’ve been for the past twelve months.  As always, that long and winding road had a few bumps along the way.  It’s the jarringness of those bumps that we’re rating today.  That’s right, just as we’ve done for…

Good tidings and great cheer. Merry Christmas, Happy Hanukkah, Kool Kwanzaa, Super Solstice – whatever holiday you’re celebrating. What is there to celebrate? Well, for the moment we can all celebrate our top ten favorite drug and medical device decisions of 2009. While we don’t have a Supreme Court star at the top or our…

It’s that time of year. Yeah, we know, it’s neither new nor original to do top ten lists – but it’s still fun. Except when it isn’t.
How much fun can it be to review all those times in the past year when we’ve been kicked in the teeth? That’s right. Here are our top…

We’re back again with our manifestly unoriginal, but still interesting, idea of top ten lists for the best and worst decisions in our niche for 2008. It’s a way of recapping our second full calendar year in the blogosphere. Sure, there’s a little bit of time left in 2008, but that isn’t stopping anybody else,…

We’re doing it again. We’ve prepared our top ten lists for 2008 – the top ten best, and the bottom ten worst drug and medical device product liability decisions of the year – our second full turn of the calendar in the blogosphere. You might think we’d start with the top ten, but that would…

We can’t resist.
Posting the best and worst product liability decisions of 2007 isn’t enough.
How about the best pharmaceutical stories — legal or non-legal — of the year?
But we’re not pulling on the laboring oar for this one; we’re just searching the web.
Over at Pharma’s Market on CNBC.com, Mike Huckman thinks about…