This has been a big year for blood and tissue statute decisions. Given their subject matter, we’ve previously lamented that the decisions didn’t fall closer to Halloween. While not quite coinciding with our doorbells ringing and handing out candy to the little ones, today’s decision is close enough for a little seasonal digression.Continue Reading Another Blood and Tissue Statute Win
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Fraud on the FDA Not an Exception to Noerr-Pennington Antitrust Immunity
We don’t usually weigh in on commercial disputes like antitrust cases. But In re Merck Mumps Vaccine Antitrust Litigation, 2024 U.S. App. LEXIS 25271 (3rd Cir. Oct. 7, 2024), is a 2-1 appellate decision that dismisses Sherman Act violation claims by favorably resolving allegations of fraud on the FDA. We do like to…
Shameless Plug: ACI Drug & Device Conference (December 3 – 4)
Several of your Reed Smith bloggers are making plans to be in New York on December 3 – 4 to attend ACI’s Annual Conference on Drug and Medical Device Litigation. We’re looking forward to great content and numerous networking opportunities – and maybe even the chance to catch up with some of our loyal…
Litigation Funding Discovery from Secondary Payor Troll
If you’ve been practicing in mass torts for any length of time, you’ve probably dealt with MSP Recovery. We’ve posted about this Medicare Secondary Payor Troll many times (most recently here). One of MSP’s typical litigation approaches is to claim it has assignments of rights from certain Medicare Advantage Plans and then assert claims…
The Litigation Transparency Act of 2024
Today’s guest post is from our Dechert LLP colleagues Doug Fleming and Noah Becker. They examine the recently proposed Litigation Transparency Act. As always our guest bloggers deserve all of the credit (and any of the blame) for their efforts.
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Consider the following scenario — it’s not an unusual one in this brave…
Guest Post – You Can’t Always Get What You Want – Plaintiff’s Failure To Accept Defendant’s Offer Of Judgment Results In Defendant’s Recovery Of Costs And Attorneys’ FeesGuest Post –
Today’s guest post is from Reed Smith counsel, and rock music aficionado, Kevin Hara. He describes the twists and turns of pursuing an unreasonable plaintiff and counsel who unwisely turned down a Florida offer of judgment in a sizable damages/lousy liability case. While the victorious defendant didn’t get all the costs and fees it…
Debunking Another Stunningly Wrong MDL Expansion of Liability
In Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008), the court, applying California law, correctly “decline[d plaintiff’s] invitation to create a new exception” to that state’s privity requirement “that would permit [plaintiff’s] action to proceed.” Id. at 1023-24. “[A] federal court sitting in diversity is not free to create new exceptions” to state law limiting liability. Id. at 1024 (citing Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975)). D&Z held, as we’ve discussed many times:
A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.
423 U.S. at 4. And the Supreme Court has kept on saying this. Erie principles prohibit “federal judges” from “displac[ing] the state law that would ordinarily govern with their own rules.” Boyle v. United Technologies Corp., 487 U.S. 500, 517 (1988). “[A] federal court is not free to apply a different rule however desirable it may believe it to be, and even though it may think that the state Supreme Court may establish a different rule in some future litigation.” Hicks v. Feiock, 485 U.S. 624, 630 n.3 (1988).
But when updating the learned intermediary section of his treatise, Bexis came across a peculiar MDL holding, that because a defendant supposedly “cite[d] no cases” for the proposition “that the learned intermediary doctrine should apply to Plaintiffs’ . . . consumer protection claims” under the laws of California, Maryland, Illinois, and Florida, then “the learned intermediary doctrine should not apply” to claims brought by plaintiffs in any of these states. In re Natera Prenatal Testing Litigation, 664 F. Supp.3d 995, 1007-08 (N.D. Cal. 2023). The decision did not cite any precedent from any of these states (not even a trial court decision) affirmatively creating any exception to the learned intermediary rule for consumer fraud claims. Id.Continue Reading Debunking Another Stunningly Wrong MDL Expansion of Liability
Florida Pure Bill of Discovery and the Medicare Secondary Payer Act
This post is from the non-Butler Snow side of the blog.
When a news article starts with “Florida man…” you know you are in for a bit of crazy. Usually crazy and funny, but in a smack-my-head kinda way.
The lawsuit resulting in the decision in MSP Recovery Claims, Series LLC v. Ethicon Inc.…
California, There You Go, Right Back Where You Started From: Expanding Liability ViaNegligent Infliction of Emotional Distress
Decades ago, California had a well-deserved reputation for inventing new varieties of tort liability. California would hatch an idea to expand liability; law professors would churn out thought-pieces taking the theory in new and further directions; judges across the country would struggle with whether to adopt the concept or constrain it in some fashion; eventually…
Does The Supreme Court’s Decision On The Purdue Bankruptcy Signal An End To Mass Tort Bankruptcies?
This is from the non-Dechert and non-Reed Smith side of the Blog.
We are not bankruptcy lawyers. So, even though we are discussing a Supreme Court decision on the powers of a bankruptcy court, we are not purporting to be experts in that area. The decision, of course, is Harrington v. Purdue Pharma L.P.…