Our initial inclination was not to blog about DiToto v. Nevro Corp., 2026 WL 1425041 (D. Md. May 21, 2026), given that it was an adverse, poorly reasoned trial court level decision. But then we received an updated citation indicating that – for reasons that totally escape us – Thompson-Reuters/West had decided to publish
This post is from the non-RS side of the Blog.
Consider the following scenario. A fifty-two-year-old woman has end-stage left ventricular heart failure despite medical care and the latest medications. Her prospects for a heart transplant or the implantation of a left-ventricular assist device to prolong her life are limited, including by financial considerations. She
Benzene-based consumer class actions are becoming almost routine. So are their dismissals on preemption grounds. It takes something a little different to make one stand out. The plaintiff in Leonard v. CVS Pharmacy, 2026 WL 986311 (N.D. Cal. Apr. 13, 2026), tried just that, invoking a res ipsa loquitur–type theory to plead “parallel”
This post is from the non-Reed Smith side of the blog.
They say it’s better to be lucky than good. But in Luckey v. Abbott Laboratories, Inc., 2026 WL 836122 (E.D. Ky. Mar. 26, 2026), plaintiff was neither.
This is a straightforward—and satisfying—PMA preemption decision involving a heart valve allegedly marketed to last at
In case our title was too subtle, we think that a stack of purported inferences should neither state a claim for strict liability with a prescription medical device nor sidestep express preemption in the case of a Class III device. We have long been dubious of the idea of a true parallel claim as articulated
Today we address two more cooked-up—literally—Valisure cases, Bodunde v. Walgreens Boots Alliance, Inc., No. 1:24-CV-00985-JLT-SAB, 2025 WL 1411306 (E.D. Cal. May 15, 2025), and Navarro v. Walgreens Boots Alliance, Inc., No. 1:24-CV-00290-JLT-SAB, 2025 WL 1411406 (E.D. Cal. May 15, 2025).
These two cases involve legally identical magistrate recommendations that Defendant’s motions to dismiss
A month or so ago, we castigated some extremely poorly reasoned expert exclusion decisions in the Bulox v. Coopersurgical litigation. The end results weren’t horrible (p-side motions were denied), but th0se Rule 702 opinions completely ignored the changes wrought by the 2023 amendments to that Rule. It was so striking that we went on PACER to see whether defense counsel was to blame for any of that – they weren’t.
Well, today we’re cheering the latest decision(s) in the same litigation. Bulox v. Coopersurgical, Inc., 2025 U.S. Dist. Lexis 56370 (Mag. S.D. Tex. March 6, 2005) (“Bulox I”), adopted, 2025 U.S. Dist. Lexis 54755 (S.D. Tex. March 25, 2025) (“Bulox II”), is as good a PMA medical device preemption decision as a defendant has a right to expect. This Bulox decision should go a long way towards defeating the other side’s latest campaign to deprive women of contraceptive choice.
Continue Reading Clip, Clip HoorayToday we report on the court’s order granting Defendant’s motion to dismiss in Keim-Bacon v. Stryker Corp., No. 4:22-CV-00383-WPJ-MTS, 2024 WL 4886051, at *1 (N.D. Okla. Nov. 25, 2024). It is a straightforward application of Riegel preemption that gets it right on all fronts.
The Scandinavian Total Ankle Replacement System (“STAR”) is a Class
Today we discuss an excellent express preemption decision from the District of Arizona, Skinner v. Small Bone Innovations Inc., 2024 WL 3639296 (D. Ariz. Aug. 2, 2024).
This decision involved the Scandinavian Total Ankle Replacement device (“STAR”). The STAR® Ankle is a Class III medical device subject to the Medical Device Amendments’ express preemption provision, 21 U.S.C. § 360k(a). This was Plaintiff’s second bite at the apple: The Court had already granted Defendants’ motion to dismiss but with leave to amend to attempt to state a parallel claim. See Skinner v. Small Bone Innovations Inc., No. CV-23-01051-PHX-MTL, 2023 WL 6318014, at *6 (D. Ariz. Sept. 28, 2023). After striking out in round one, Plaintiff fared no better in round two.
Continue Reading Slam-Dunk Express Preemption Decision from the District of Arizona
We are celebrating an anniversary today: We wrote our first blogpost on July 26, 2013. Eleven years and hundreds of posts later, we have two observations. First, we seriously need to update our blog profile photo. Or maybe we will just ride out our blogging years promoting the fiction that we are younger and fitter