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
Standing
Medicare Secondary Payor Troll Bounced from MDL

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.…
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Professional Plaintiff’s Consumer Protection Claims Were Hard To Swallow

Long, long ago, when we clerked for a federal district judge, we handled more than a few prisoner cases. We have to confess that many of the ones we saw were humorous to us, because they alleged a range of perceived slights and personal affronts as violations of their constitutional rights. (As readers know, we…
Mifepristone Manufacturer Wins First Round in West Virginia

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.…
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The Maximum Illogic of “Maximum Strength” OTC Fraud Claims

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…
Plaintiffs’ “Misleading Marketing and Labeling” Claims Thrown Out in N.D. Ill. Popcorn Case

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…
No Liability for Not Manufacturing a Product

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.…
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Plaintiffs Exit Federal Court By Exploiting Their Lack of Standing

The late chef and travel raconteur Anthony Bourdain said that great chefs pride themselves on what they can do with offal. Anybody can make a fine steak. It takes real creativity and skill to turn glands and guts into something delectable. Think of sweetbreads, tripe, or liver. No, really. A couple of weeks ago on…
A Better Valsartan Decision

This post is from the non-Reed Smith side of the blog.
We posted last week about In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2020 WL 7418006 (D.N.J. Dec. 18, 2020), a decision that came in just time to take a sport on our Worst of 2020 post. Just as we were…
Ninth Circuit Trims No Injury Class Action Claims

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…