Standing

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Photo of Eric Hudson

Released in 1965 by the Miracles, “The Tracks of My Tears” is ranked by Rolling Stone as the “Greatest Motown Song of All Time.” Smokey Robinson’s lead vocals are pure silk, the harmonies ooze soul, and  the guitar licks and strings tie it all together.  The song and the Miracles helped spread Motown around the globe.  Today’s decision about an artificial tears product won’t stack up against Smokey and the Miracles, but it hits a few chords worth sharing.Continue Reading Tracks of My Tears – Narrowing of Economic Loss Class Claims in Kentucky

Photo of Michelle Yeary

We have previously analogized that when a case is dismissed for failure to state a claim under Rule 12, that is like the plaintiff not even getting to first base.  And that when a complaint is dismissed for lack of standing, a rarer form of dismissal, the plaintiff couldn’t even get up to bat, let…

Photo of Eric Alexander

As insightful and modest as the Blog can be, we are not infallible.  Every once in a while, two posts get written on the same decision, sometimes because we try to make sure a new post goes up every non-holiday weekday of the year.  Because of the aforementioned modesty, however, we are hesitant to deprive…

Photo of Lisa Baird

Of late, the Fifth Circuit has come in for some criticism over rulings involving science, the FDA, and medicines.  But apparently even it has its limits—and Article III standing is one.

In Children’s Health Defense v. FDA, No. 23-50167, 2024 U.S. App. LEXIS 1528, 2024 WL 244938 (5th Cir. 1/23/24), a non-profit and several…

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Growing up down in Georgia, Bexis used the phrase “a whole lotta nuthin’” frequently when encountering things (like the 1970s Underground Atlanta tourist trap) or people (like Lester Maddox, who governed the same way he rode bicycles) that didn’t impress him much.  That’s the phrase that came to mind when we read In re E. I. du Pont de Nemours & Co. C-8 Personal Injury Litigation, ___ F.4th ___, 2023 WL 8183812 (6th Cir. Nov. 27, 2023).  Indeed, the opening sentence of the du Pont opinion was:  “Seldom is so ambitious a case filed on so slight a basis.”  Id. at 81.  And yes, du Pont was an appeal from yet another bizarrely pro-plaintiff MDL decision.Continue Reading A Whole Lotta Nuthin’

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

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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