Sometimes bench-bar conferences are actually useful. Last week we wrote a post about a district court’s application of the New York statute of limitations to shut down a product liability lawsuit. The key holding was that the statute of limitations began to run as soon as the plaintiff experienced relevant symptoms. There was no need
Statute Of Limitations
New York Statute of Limitations Runs from Medical Symptoms, not Diagnosis
Sell or Don’t Sell: Liability May Await Either Way
For many years, even before the Supreme Court picked up the ball, we have been arguing that “stop selling” theories of liability for alleged injuries from prescription drugs should not be viable. This is not just a preemption issue. Basic product liability principles do not square easily with liability contingent on developing one drug…
Revision Surgery Starts the Clock for Statute of Limitations
We don’t usually blog about statute of limitations cases because the issues tend be state and fact specific. But Boyd v. Allergan PLC, 2023 U.S. Dist. LEXIS 115779 (D. Org. Jul. 6, 2023) addresses a fact situation we see repeated often enough in medical device cases that we thought it was worth reporting on.…
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.Continue Reading No Liability for Not Manufacturing a Product
Judge-Made Law Gets Peeled Back In Bananas Case
When we say “bananas,” today’s case is actually about bananas, that herb people tend to call a fruit. It is also quite unusual and complicated. Because it also involves some tragic underlying events, our quips are done. A bit of etymology is warranted, though. We used the term “judge-made law” in the title and that…
Pennsylvania – Big Brother Will Sue You Now
Today’s case isn’t drug/device, but it’s something our defense-oriented readers should know about. At the tail end of 2021, the Pennsylvania Commonwealth Court laid this rotten egg: Commonwealth v. Monsanto Co., ___ A.3d ___, 2021 WL 6139209 (Pa. Cmwlth. Dec. 30, 2021) (“CvM”). The Commonwealth Court is a unique Pennsylvania judicial body,…
Discovery Rule Does Not Save Plaintiff From Her Lack Of Diligence
We tend not to post much on appellate statute of limitations decisions. There are a few reasons for that. First, they are often very fact-specific, rarely delivering holdings with clear applications to other cases. Second, because they can be fact-specific and plaintiffs are known to plead around defenses, good decisions on motions to dismiss are…
Fifth Circuit Affirms Two Defense Victories from the Taxotere MDL
Plaintiff Cannot Escape Prior Pleadings to Avoid Statute of Limitations
Wanke v. Invasix, Inc., 2021 WL 325923 (M.D. Tenn. Feb. 1, 2021) is an interesting and somewhat long story, so we’re just going to give it to you straight.
In June 2017, plaintiff underwent a medical procedure on her face in which defendant’s medical device was used. Her counsel entered into a tolling agreement…