This post is from the non-Reed Smith, non-Dechert , and non-Holland & Knight side of the blog. Everyone else is involved.

The Good, the Bad, and the Ugly is a classic Clint Eastwood spaghetti Western where even the Good may not be all good.  In California state court, a demurrer sustained is a defense win, right?  Although there are some bright spots, In re Ranitidine Cases is one of the ugliest defense wins we have seen in a while, providing leave to amend and a roadmap for further expansion of the Gilead duty-to-innovate.

We don’t see many cases involving human tissue, but medical products derived from human tissue are actually quite common.  Skin replacement products, tissue-engineered cartilage, compounds for treating bone fractures and tumors.  Those kinds of things.  Just yesterday in our annual Ten Best/Ten Worst Cases webinar we discussed a case involving transplanted human eye tissue. …

As we discussed at length in this post, since the 1940s, the Pennsylvania Supreme Court and other courts applying Pennsylvania law have refused to subject prescription medical products to strict liability.  That is significant because, unlike (now) every other state in the country, since 1987 Pennsylvania precedent prohibited defendants from introducing evidence of their…

Beginning – at least − with the awful decision in Schrecengost v. Coloplast Corp., 425 F. Supp.3d 448, 465 (W.D. Pa. 2019) (discussed here), plaintiffs seeking to overturn the longstanding Pennsylvania (since the 1940s) prohibition against strict liability in prescription medical product liability litigation have been systematically attacking the precedential weight…

We have blogged several times about the somewhat esoteric issue of whether intangible items – chiefly computer software, website algorithms, and other electronic information – is treated as a “product” for purposes of imposing strict liability on their creators.  It’s an interesting topic; Eric recently wrote a paper on it, and Bexis is putting together a “white paper” for the Product Liability Advisory Council on the same subject.  From these exercises we concluded that a 50-state survey on intangibles as “products” for product liability purposes would be both doable and useful.

Montana became the first state to ban TikTok this month.  You no doubt have seen the press and have read the spirited discussion condemning foreign spies on the one hand and championing First Amendment rights on the other.  Litigation has already commenced.  But, while all that was developing, you may have overlooked that Montana…

If we have said it once, we have said it a hundred times:  medical product manufacturers are not insurers of their products.  Almost as frequently uttered would be that strict liability is not the same thing as absolute liability.  In the show position might be that the temporal relationship between a new medical condition and…

At some point, early in the pelvic mesh litigation, some genius on the other side decided it would be a good idea to include a stand-alone claim for “defective product” in at least one of the plaintiffs’ standard complaints.  “Defective product” was pleaded as some generic form of strict liability, separate and apart from the three accepted theories of manufacturing, design, and warning defect.  We have no idea where this concept of “defective product” came from.  It’s not adopted by the law of any state as far as we can tell.