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No one can argue with that title because Bruno v. Bluetriton Brands, Inc., was most definitely dismissed completely on preemption grounds.  2024 U.S.Dist. LEXIS 98451 (C.D. Cal. May 6, 2024).  In so ruling, the court handed class action plaintiffs a significant defeat on of their latest litigation endeavors:  “microplastics” in water.  It’s not a

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We recently discussed how “failure-to-recall” claims essentially don’t exist – outside of a couple of limited fact patterns that plaintiffs asserting such claims in litigation involving FDA-regulated products can almost never allege.  Today’s post adds the constitutional defense of preemption to good, old-fashioned state-law failure to state a claim.Continue Reading Bartlett Pairs – “Failure To Recall” As a “Stop-Selling” Variant

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This post is from the non-Reed Smith, non-Dechert , and non-Holland & Knight side of the blog. Everyone else is involved.

The Good, the Bad, and the Ugly is a classic Clint Eastwood spaghetti Western where even the Good may not be all good.  In California state court, a demurrer sustained is a defense win, right?  Although there are some bright spots, In re Ranitidine Cases is one of the ugliest defense wins we have seen in a while, providing leave to amend and a roadmap for further expansion of the Gilead duty-to-innovate.Continue Reading Post-Gilead Heartburn in the California Ranitidine Litigation

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The PREP Act is having a moment.  Congress enacted the Public Readiness & Emergency Preparedness Act (“PREP Act”) in 2005 to ensure the availability of effective countermeasures in the event of public health emergencies.  The declaration of COVID-19 as an “emergency” has thus thrust the PREP Act into the limelight.  Heck, when you’re a federal

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Those of us who took Con Law as first year law students may recall Marbury v. Madison as an early test of the Supreme Court’s place in our nascent republic.  Alliteration being a mnemonic device, some may recall that Madison was Secretary of State James Madison and the decision was written by Chief Justice John

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Last year Bexis was lead author on a law review article in the Food and Drug Law Journal titled Federal Preemption and the Post-Dobbs Reproductive Freedom Frontier.  The article expands on themes previously raised in this blog, including here, here and here.  It discusses the application of federal preemption under the Food Drug and Cosmetic Act (FDCA) to state-law medication abortion restrictions after Dobbs. The article recognized that, following Dobbs, it was inevitable that FDCA preemption would become embroiled in the abortion controversy. That prediction was accurate.  Today’s decision addresses the impact of preemption on a North Carolina law that imposed significant restrictions on an FDA approved medication taken to terminate a pregnancy.Continue Reading North Carolina and Post-Dobbs Regulation of Mifepristone

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We have seen a number of consumer fraud class action cases brought over a range of fairly ticky tacky issues about OTC drugs and consumer products.  California law and courts have been fairly favorable to these cases, which follow a pattern of a test plaintiff seeking to represent some large class because (s)he claims to

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We write a lot of briefs involving federal preemption and Class III medical devices with premarket approval (or “PMA”).  Many of those briefs are in support of motions to dismiss lawsuits brought by attorneys who don’t regularly practice in the pharmaceutical and medical device product liability space. 

The complaints filed by such attorneys often are