The Ninth Circuit recently answered a preemption question that we had seen arise intermittently, mostly in food litigation, over the past couple of years.  Because the relevant preemption clause closely resembles the language of the Medical Device Amendments, we thought it was worth a look.

In Webb v. Trader Joe’s Co., ___ F.3d ___,

Before we turn to today’s case, a quick update:  when last we spoke, we were about to board a plane for Peoria – our first work trip in sixteen months.  We were excited about it.  We regret to report that we stepped out of the plane into something resembling a weird post-apocalyptic Mad Max movie. 

The United States Supreme Court in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), determined that “off-label usage” is “accepted and necessary” by both the FDA and the medical community.  Id. at 350.  Thus, “[p]hysicians may prescribe drugs and devices for off-label uses.”  Id. at 351 n.5 (citation and quotation marks omitted). 

The Ninth Circuit recently answered a preemption question that we had seen arise intermittently, mostly in food litigation, over the past couple of years.  Because the relevant preemption clause closely resembles the language of the Medical Device Amendments (“MDA”), we thought it was worth a look.

In Webb v. Trader Joe’s Co., ___ F.3d

We’re old enough that we remember the pre-Daubert Bendectin litigation.  Bendectin was the only FDA-approved drug indicated for nausea and vomiting from pregnancy.  Yellow journalism (the National Enquirer) and scientific fraud (deliberately falsified scientific data) fanned a birth defect scare, which led to an avalanche of factually baseless litigation – Daubert was

This post is to update our readers about subsequent developments in matters covered in some of our prior blogposts.

First, slightly over a year ago we praised Gayle v. Pfizer, Inc., 452 F. Supp.3d 78 (S.D.N.Y. 2020), a prescription drug preemption decision holding, among other things, that a plaintiff could not claim “newly