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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

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There are approximately 1.4 million people currently serving in the United States military and 16.5 million US military veterans—and we thank them all for their service.  In prescription medical product liability litigation, especially in MDLs and mass torts, that means defendants are more likely than not to run into plaintiffs who received at least some

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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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Personalized medicine is the wave of the future.  Whether treating disease or prescribing medical devices (or both), medical practitioners are taking individualized patient characteristics into account more and more as they treat their patients.  Cancer therapy can now be targeted at the genetic level, and some medical devices can now be created to match patient

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This is a guest post by Kelly Jones Howell, of Harris Beach and it’s for a good cause.


DRI’s Drug and Medical Device Committee will hold its annual Seminar on May 3-5, 2023, at the Hilton New Orleans Riverside, in New Orleans, Louisiana.  The Seminar is a preeminent program for practitioners who represent

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Hey, come closer. We’ve got a secret to share with you. We’ll whisper it in your ear. Ready?  Courts hate sealing filings.  It’s an administrative pain.  Plus, parties who claim confidentiality tend to be a bit promiscuous in that regard, labeling far more documents confidential than is warranted.  We’ve been on both sides of confidentiality

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A couple of our recent posts have mentioned the alternative compensation system created by the 1986 National Childhood Vaccine Injury Act (“Vaccine Act”), 42 U.S.C. §§300aa-10, et seq.

This Vaccine Program is the Act’s alternative to tort litigation, which addresses alleged injuries resulting from vaccines covered by the Vaccine Act.  The legal aspects of the

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One aspect of Pietrantoni v. Corcept Therapeutics Inc., ___ F. Supp.3d ___, 2022 WL 16857262 (D. Mass. Nov. 10, 2022), has troubled us ever since we first noticed the opinion.  But we recently noticed that Pietrantoni had been selected for publication, so we decided the issue was important enough to examine in depth.

Continue Reading The Problem with Pietrantoni – Unraveling Undertaking Liability

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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