Photo of Stephen McConnell

Patora v. Vi-Jon, LLC, 2023 U.S. Dist. LEXIS 153421 (S.D.N.Y. Aug. 30, 2023), is a typical express preemption decision resulting in dismissal of a typical consumer protection-based purely economic loss class action against an over the counter (OTC) product.  The plaintiffs, suing on behalf of a putative class, alleged that they purchased an OTC

Photo of Bexis

We’ve already written at some length about the appellate decision in Atchley v. AstraZeneca UK Ltd., 22 F.4th 204 (D.C. Cir. 2022), which we considered a wrong-headed application of the Anti-Terrorism Act of 1992 (“ATA”), 18 U.S.C. §2333 – seeking recovery, not from any terrorist or terrorist affiliate, but rather against major pharmaceutical companies.  We won’t go into the allegations again, but in one sentence, the claim is:  that the Iraqi government’s health department was overrun by terrorists, and because the terrorists allegedly made money demanding prescription drugs as bribes and reselling the drugs for a profit, the various pharmaceutical defendants were liable “sponsoring” terrorism and for “aiding and abetting” simply because they transacted with the health department of government of Iraq (a United States ally at the time).

Anyway, a couple of months ago the United States Supreme Court decided Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023) (“Taamneh”), and Gonzalez v. Google LLC, 143 S. Ct. 1191 (2023).  While these decisions didn’t turn into the expected §230 immunity showdown some had expected, see Gonzalez, 143 S. Ct. at 1192 (“plaintiffs’ complaint − independent of §230 − states little if any claim for relief”), Taamneh did address the concept of aiding and abetting in the ATA context.Continue Reading Here’s Hoping….

Photo of Stephen McConnell

Corporate defendants do not always enjoy being in St. Louis.  We don’t mean that as a knock on the Gateway Arch or the superb zoo or the excellent food options or even (grrrr) “baseball heaven.” We mean that St. Louis City Court is singularly inhospitable to tort defendants.  The advance sheets are full of big (in

Photo of Andrew Tauber

The case we discuss today, Doe v. Ladapo, 2023 WL 3833848 (N.D. Fla. 2023), appeared in our daily search results because it briefly addresses off-label use of prescription drugs. Invalidating a state statute that would have prohibited a particular off-label use, the court explained that “[o]ff-label use of drugs is commonplace” and the fact

Photo of Bexis

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

Photo of Michelle Yeary

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

Photo of Bexis

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 TaxotereContinue Reading Only in an MDL….

Photo of Steven Boranian

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