Today’s post is a short cautionary tale about Federal Rule of Civil Procedure 15(a)(1) and plaintiff’s “one free shot” at amending a complaint. That rule provides:
(B) if the pleading is one to
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None of our regular bloggers are solo practitioners. And we’ve all been practicing for quite some time. So, it is fair to stay that we’ve all had ample opportunity to offer writing advice to more junior lawyers. Know your audience. Use active voice. Stop using legalese. Avoid redundancy. And be direct and concise. Which…
Back in 2008, the United States Supreme Court held, in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), that essentially all product liability claims against manufacturers of FDA pre-market approved (“PMA”) medical devices were preempted. After all, PMA “is in no sense an exemption from federal safety review − it is federal safety review.” Id. at 323. Thus, by a 7-2 margin the Court held, per Justice Scalia, that all state-law liability claims before it – “strict liability; breach of implied warranty; and negligence in the [product’s] design, testing, inspection, distribution, labeling, marketing, and sale,” id. at 320 – were expressly preempted:Continue Reading PMA Preemption Decision Slides to the Bottom of the “Parallel Claim” Slippery Slope
Is what the court finally had to tell plaintiff in Roshkovan v. Bristol-Myers Squibb Co., 2023 U.S. Dist. LEXIS 166742 (C.D. Cal. Sep. 19, 2023) in dismissing his second amended complaint as both preempted and inadequately pleaded. We posted about the dismissals of the original and first amended complaints on the same grounds here…
Plaintiff in Gurule v. Boston Scientific Corp., 2023 Cal. Super. LEXIS 49321 (Cal. Super. Jul. 18, 2023), tried to pull off a little magic through misdirection, but couldn’t fool the court. Plaintiff tried to distract the court from the complete lack of sufficient allegations to satisfy even notice pleading requirements by alleging an elaborate…
Today we report on Farson v. Coopersurgical, Inc., 2023 WL 5002818 (N.D. Ohio 2023), a product-liability decision that dismissed all claims against all defendants based on lack of personal jurisdiction, preemption, and Twombly.
Claiming that she was injured when an implantable medical device migrated in her body, the plaintiff brought suit in Ohio…
We are back “stateside,” after a trip to London and Florence. We loved both, especially the Tower of London, Highclere Castle (used for the filming of Downton Abbey – how very cool to walk through the rooms we watched with such pleasure for six seasons) and, of course, the breathtaking David. But this is pretty…
If we have said it once, we have said it a hundred times: medical product manufacturers are not insurers of their products. Almost as frequently uttered would be that strict liability is not the same thing as absolute liability. In the show position might be that the temporal relationship between a new medical condition and…
When last we wrote, we had just watched our gorgeous standard poodle puppy, Luca, compete in his first weekend of dog shows. He was still learning the ropes, and, though he looked beautiful, he did not win any points. (Dog shows are worth from one to five points for each breed, depending on the number…
When this blogger thinks about the “Big Three” her mind goes to This is Us – Kevin, Kate and Randall. Admittedly, that’s not the only “Big Three.” Most people probably go to Great Britain, the United States, and the Soviet Union in World War II. But that alliance certainly was shorter than the Pearsons. Now…