Four weeks ago, we posted concerning an MDL judge’s decision not to sanction a plaintiff lawyer for false representations concerning diversity jurisdiction. We disputed that acting in the client’s “best interest” was a good excuse and questioned whether MDL courts cut plaintiff lawyers more slack than they should. We also had a bit of a
Today’s guest post comes from Reed Smith partner, Matt Jacobson. He discusses a new medical device case that puts the “Tw” in TwIqball – as in twisting a screw. The result is a total defense win, albeit with the “twist” that the plaintiff can try again, if he can. As always, our guest posters deserve 100% of the credit (and any blame) for what they write.
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Have you ever heard that old idiom “having a screw loose” and wondered where it came from? My guess is most of you have heard the saying, but never thought twice about its origin (well maybe Bexis has). But since I have your attention, here is a small history lesson. During the industrial revolution, if a screw from a machine came loose it meant that the machine was not behaving normally. Since these machines were built for mass production, having a screw come loose would cause the entire machine to shut down, halting the process. At least one person claims that Eli Whitney, famed for inventing the cotton gin, was the person to say this phrase first. But I cannot verify that fact no matter how many internet searches I ran, so that will remain a mystery. Continue Reading Guest Post – Twlqbal in the E.D. Cal.- No Screws Loose There
Do kids still do connect-the-dots? Back before tablets, smart phones, laptops, and even computers, when you went on a long car trip you passed the time playing license plate bingo, punch buggy, annoying your parents, and maybe you had an “activity book.” An actual paperback book filled with coloring pages, mazes, word scrambles, seek-a-word, and
Today’s case — In re Tepezza Mkt’g, Sales Pracs., & Prod. Liab. Litig., MDL No. 3079, 2025 WL 81338 (N.D. Ill. Nov. Jan. 10, 2025) – doesn’t really break new ground on the substantive law, in fact it is a split decision. But it comes from an unusual procedural posture worth pointing out.
The
There was a time when it seemed that half our posts were mixed bags of TwIqbal — product liability claims tested against the SCOTUS decisions in Twombly and Iqbal requiring pleadings to be substantive and plausible. Then things settled down for a bit. Did plaintiffs get smarter? Did courts resume tolerance for bare bones complaints?
So learned some plaintiffs in In re: Hair Relaxer Marketing Sales Practices and Products Liability Litigation, MDL 3060, 2024 U.S. Dist. LEXIS 206474 (N.D. Ill. Nov. 13, 2024). While not a drug or device case, the problem it exhibits is common to many mass torts. Plaintiffs’ counsels’ solicitations produce a rush to file complaints
Our prior TwIqbal post concerning learned intermediary causation was well received by our readers, so we’re back with a second, related (and, as it turned out, even longer) discussion of pleading in prescription medical product warning litigation.
In addition to pleading causation, a product liability plaintiff alleging an inadequate warning must plead how the warning was inadequate. Sounds rather obvious, but never underestimate the capacity of plaintiffs in our sandbox for failing to plead their cases. The amount of precedent bouncing lazy plaintiffs for not bothering to allege what (they claim) is wrong with prescription medical product warnings is surprisingly (or maybe not) extensive.Continue Reading Using TwIqbal To Require Plaintiffs To Identify Claimed Warning Inadequacy
We receive emails from readers fairly regularly. They are usually from other attorneys, sometimes friends or acquaintances sharing their points of view or expanding on things that we may have underplayed or overlooked. Although we don’t spend much time (or really any time) trying to predict when we might hear from others, we have noticed
Anybody who has litigated a prescription medical product liability case knows about the learned intermediary rule, which is now followed in all fifty states. Just as prescription medical product warnings are routed through prescribing physicians, so necessarily is the causation aspect of such warnings. The details vary from state to state, but in all learned intermediary cases, correcting an allegedly inadequate warning must cause the learned intermediary physician to do something differently, and that “something” must prevent the plaintiff’s claimed injury.
At the same time, the Supreme Court’s TwIqbal decisions require that plaintiffs plead facts to support the elements of their causes of action. From the defense perspective, that means that complaints against our clients should be required to plead (at minimum): (1) the identity of the relevant prescriber, (2) what that prescriber would have done differently with a “better” warning, and (3) how that difference would have prevented the claimed harm. We don’t ask for a lot, but at least one fact supporting these essential causal elements should certainly be mandatory.Continue Reading Using TwIqbal To Enforce Warning Causation in Learned Intermediary Cases
In golf, a mulligan is when a golfer hits a second shot if they’re not satisfied with their first shot. We’ve used the term before to refer to the second chances given to plaintiffs to re-plead their claims. So, we decided to look up the origin of the term and found conflicting stories. The most