So plaintiffs learned in the In re: Gardasil Products Liability Litigation, MDL 3036, 2024 WL 1197919 (W.D.N.C. Mar. 20, 2024). Try as they did in 550-paragraph and 120-page complaints to muddle their claims, the court cleared away the muck and found what was left was almost all preempted by the Vaccine Act.
While pending
Bexis was a mere college freshman, and a Princeton football manager, on September 28, 1974. In the first game of the season, Rutgers played Princeton at Princeton’s old (and rather decrepit) Palmer Stadium. With about three minutes to go and Rutgers up 6-0, Rutgers fans swarmed the field and tore down both sets of goalposts. When Princeton tied the game up with less than half a minute left, without goalposts we could not kick an extra point. A two point conversion failed, and Rutgers escaped with a tie.
Not quite half a century later, Rutgers scored an actual win. This time Bexis is pleased. In Children’s Health Defense, Inc. v. Rutgers, the State University of New Jersey, ___ F.4th ___, 2024 WL 637353 (3d Cir. Feb. 15, 2024) (“CHD”), the Third Circuit affirmed the right of a publicly supported university to require COVID-19 vaccination as a prerequisite to its students’ in-person attendance. We blogged about this outcome in the district court, and its precedential affirmance is even more significant.
Continue Reading Tear Down the Goalposts – Rutgers Wins
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
Law school exams are usually exercises in issue spotting. Buried within the fact scenarios are various legal issues. The student earns points by identifying those issues and discussing how they should be resolved. Sequence also matters. It makes sense to walk through threshold issues, such as jurisdiction, first.
Goins v. Saint Elizabeth Medical Center, Inc.
Two years ago we posted on whether courts could exclude prospective jurors for cause because they weren’t vaccinated. Not much precedent was then available.
Now, with United States v. O’Lear, 2024 WL 79971 (6th Cir. Jan. 8, 2024), we get the first published appellate decision on the topic, affirming the exclusion. (The Ninth Circuit
We have no inclination to mess with Texas. Heck, a state ornery enough to secede from two different countries in order to preserve slavery isn’t likely to care, anyway. So if Texas wants to run its own power grid, not connect to the rest of us, and freeze in the dark when that system fails, we’re certainly not going to stand in the way. Conversely, when Texas emphatically adopted the learned intermediary rule in Centocor, Inc. v. Hamilton, 372 S.W.3d 140 (Tex. 2012), we hailed it as the best decision of 2012.
But when Texas decides to mess with the rest of us…. Well, that’s different.
So we do have comments on the bizarre complaint that the Texas attorney general recently filed over COVID-19. The complaint, brought under the Texas consumer protection statute, sued a major manufacturer of COVID-19 vaccine that was used to control the recent pandemic. That Complaint alleges various antivax conspiracy theories concerning COVID-19 vaccines, the FDA, emergency use authorizations, and the media that have circulated since these vaccines first became available. The Texas Complaint also claims that, in various ways, the vaccine manufacturer violated certain mandatory FDCA provisions and FDA regulations (¶22), did not follow voluntary FDA guidance (¶¶25-31), supposedly committed fraud on the FDA by submitting misleading data (¶¶47, 117, 120-21), and mostly that it purportedly misled the public and/or the press (¶¶50, 55-91, 154-55, 157-59, 161-63, 165-66, 168-69).
Continue Reading A Texas Mess
We’ve discussed our Drug and Device Law Blog elder care duties before and how it has educated us about health issues faced by the senior population. Shingles is one health risk that increases as you get older. It is often described as a painful rash, but “painful rash” doesn’t really capture how bad shingles can
We say today’s case is about SIRVA (shoulder injury related to vaccine administration), but plaintiff tried her best to run from that allegation in her opposition to defendants’ motion to dismiss. That’s because a SIRVA case runs up against not only a preemption obstacle, but also serious duty and causation barriers. But since the court
Thirteen years litigating the same case is a looooong time. Absurdly long. Long enough for an attorney working on the case to go from an associate learning to coax a newborn to sleep, to a partner juggling teen school and soccer commitments. Long enough for lawyers to migrate from Blackberrys and voicemail, to smart phones
We recently commented on claimants who manipulate and evade the Vaccine Act by making vaccine claims, only then to make no effort to pursue them. Their play is to abandon their claims after the statutory 240-day waiting period and file lawsuits, where they stand a better chance of recovering more money. Because we think the