That concept does not feel like it should be controversial in any way. Afterall, at the heart of class action tolling of the statute of limitations, as announced in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), is there must be a pending class action. But the concept gets a little
Statute Of Limitations
Collateral Litigation As A Deterrent Of Bogus Research?

From its start, the Blog has railed against certain expansions of traditional product liability that could have negative impacts on scientific progress and the availability of good medical products. Innovator liability, first described in Conte back in 2008, is a good example of a bad idea. Its offspring, the so-called duty to innovate…
Gadolinium Case Gets SOL’d and Preempted
More New York Statute of Limitations Good News

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…
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,…