Photo of Eric Alexander

Sometimes there are decisions that we begin to read with an expectation—perhaps based on a thumbnail from Bexis—that we will have a strong impression.  Not surprisingly, the expected impression is usually negative.  This was the case with Apter v. HHS, No. 22-40802, 2023 U.S. App. LEXIS 23401 (5th Cir. Sept. 1, 2023), which concerned

Photo of Bexis

A notorious class-action troll took it on the chin in MSP Recovery Claims, Series LLC v. Exactech, Inc., 2023 WL 4066635 (E.D.N.Y. June 14, 2023) (“MSPRC”).  The troll’s modus operandi is to claim it has assignments of rights from certain fellow-traveling Medicare Advantage Organizations (“MAOs”) and try to turn those into class actions against targeted defendants – usually primary insurers.  A search for this plaintiff’s name (MSP) appearing in the same opinion as this assignor (Summacare) pulled up no fewer than 23 hits on Westlaw.

In MSPRC, however, this prolific litigant tried to branch out beyond its usual Medicare Secondary Payor claims into more general third-party payor (“TPP”) litigation.  That didn’t turn out well for the troll.  Indeed, MSPRC looks like the litigation equivalent of the troll being knocked out with its own club.

Continue Reading Medicare Secondary Payor Troll Bounced from MDL

Photo of Bexis

Over the past few months, Bexis, with the substantial help of several Reed Smith associates, has prepared a law review article – “Federal Preemption and the Post- Dobbs Reproductive Freedom Frontier” – which will soon be published in the Food & Drug Law Journal.  A draft of this article is now available on SSRN.

The core premise of Bexis’ article is very simple:  Once the FDA has said “yes” and approved a particular drug for a particular indication (“intended use”) for sale in the United States, federal preemption precludes any state from saying “no” and trying to ban that same FDA-approved drug.  It doesn’t matter whether that drug is morphine, methadone, minoxidil – or mifepristone.

Continue Reading Mifepristone Manufacturer Wins First Round in West Virginia

Photo of Stephen McConnell

The plaintiffs in Acosta-Aguayo v. Walgreen Co., 2023 U.S. Dist. LEXIS 34836  (N.D. Ill. March 2, 2023), visited their friendly neighborhood drug store and bought a lawsuit.  Well, first they bought pain relief patches.  Those patches were over the counter (OTC) products.  No prescriptions were required.  Maybe those pain patches worked and maybe they

Photo of Rachel B. Weil

Today’s case is not about drugs or medical devices.  It is about popcorn, a perfect prompt (or as good as ours ever get) for a rant about movies.  We are working our way through the Oscar nominees, in anticipation of the upcoming Academy Awards.  (Pre-apocalypse, we hosted an annual Oscar party, featuring good food, good

Photo of Bexis

We’ve written several posts about ridiculous absolute liability theories seeking to hold drug manufacturers liable simply for making an FDA approved prescription drug.  Wilkins v. Genzyme Corp., 2022 WL 4237528 (D. Mass. Sept. 14, 2022), is an even stranger claim, with the plaintiff seeking to hold the defendant liable for not manufacturing a prescription drug.  Fortunately, in Wilkins, those claims (several theories alleging essentially the same thing) did not state a claim.

Continue Reading No Liability for Not Manufacturing a Product

Photo of Bexis

Purported class actions on behalf of people who haven’t really suffered any injury are one of the banes of our existence.  While not limited to California or courts in the Ninth Circuit, some of the worst (most of which we haven’t covered because they are adverse non-drug/device cases) decisions certainly hail from there.

Recently, however