Indulge us for a moment as we recount another airline adventure. Recently, we traveled thousands of miles to an important argument. Our first flight boarded right on time, left the gate right on time, and taxied down the runway . . . partway. Then stopped. Enter the inevitable announcement: “Ladies and gentlemen, we’re very sorry,
We like preemption and we dislike expensive discovery. In Gale v. Mentor Worldwide, LLC, 2019 WL 2567790 (D. Kansas June 21, 2019), the court felt the same way we do, and did something about it.
The plaintiff in Gale sued for injuries allegedly sustained as a result of silicone breast implants. The complaint contained
It hasn’t happened yet, but just as the Supreme Court originally did with Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), the Court issued an order on June 24, asking for the Solicitor General’s views in Avco Corp. v. Sikkelee, No. 18-1140. The Order is on SCOTUSBlog, here
If preemption had a family tree, the drug and device branch would be heavy. And, as our scorecards and cheat sheets demonstrate, there are obvious sub-branches that sprouted out of major Supreme Court decisions. We have the Wyeth v. Levine, 555 U.S. 555 (2009) pharmaceutical branch; the Medtronic, Inc. v. Lohr, 518 U.S.
Our days of the week are mostly named based on Norse mythology, but our months are firmly Roman. May is named after the deity Maia, whose Roman version was honored for her role in the growth of plants. Her cousin Juno, the queen of the Roman gods, gave us the name for June. In their
Of all the products regulated by the FDA, drugs and medical devices receive the most erratic preemption protection. Thank you, Levine, Lohr, and gibberings about CBEs, clear evidence, and parallel claims. Perhaps it is bad form to accuse SCOTUS of incoherence, but we wouldn’t be the first. (Try reading the SCOTUS doctrinal wanderings
As we discussed in our “breaking news” post, the Supreme Court’s decision in Merck Sharp & Dohme Corp. v. Albrecht, ___ S. Ct. ___, 2019 WL 2166393 (U.S. May 20, 2019) (“Albrecht”), delivered a defense win on the main issue before the Court – that preemption is a question “a
We all know hindsight is 20/20. And, it’s easy. There are dozens of television and radio programs that thrive on Monday morning quarterbacking. There’s no risk in saying the coach should have called for a pass when you already know the run didn’t work. It’s also dangerous because it’s easy. People are often too quick
Just in. United States Supreme Court rules unanimously in Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290, slip op. (U.S. May 20, 2019) (“Albrecht”), that the Third Circuit got it wrong in In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268 (3d Cir. 2017). However, the majority opinion,
No. It can’t be. PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) took care of that. Just look at our generic preemption scorecard – the proof is there. The warnings on generic drugs must be the “same” as those on branded drugs. Generic drug manufacturers cannot unilaterally alter, amend, or change any warning and