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We observed oral argument the other day before the California Supreme Court in Himes v. Somatics, a case that places California’s learned intermediary doctrine squarely in the spotlight.  A learned intermediary case before the California Supreme Court?  For your ever-vigilant DDL bloggers, that is like Thanksgiving and Christmas wrapped into one! 

Who will be

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Before we dive into today’s case, Avrin v. Mentor Worldwide LLC, 2024 WL 115672 (C.D. Cal. March 15, 2024), we offer two preliminary observations:

1. We love to hear from our readers.  Sometimes we get emails commenting on a post.  Often, those comments arrive in the form of gushing reviews. That’s nice.  Less often

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The Dearinger case in the Western District of Washington provided a lot of defense friendly blog fodder. It made its way to the Washington Supreme Court for a certified question whether Washington would recognize a direct to consumer exception to the learned intermediary rule. The Washington Supreme Court answered that question with a resounding no.  Following that decision, the district court dismissed some of plaintiffs’ claims on an initial motion for summary judgement.  We blogged about that decision here.  The latest decision in Dearinger v. Eli Lilly & Co., 2024 WL 416848 (W.D. Wash. Feb. 5, 2024) serves up some nice defense nuggets applying the Washington Product Liability Act (WPLA) and refusing to let a sham affidavit create a fact issue.Continue Reading Last Nail in the Coffin for Dearinger

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We’ve noticed a recent uptick in product liability lawsuits brought against over the counter (OTC) and other consumer products. (Shameless plug: we will be on a panel discussing such litigation at ACI in NYC on January 23-24.). These are products that do not require a prescription. Maybe plaintiff lawyers prefer cases without any pesky learned intermediary who

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The Fifth Circuit gave the plaintiff in Bruno v. Biomet, Inc., 2023 U.S. Dist. LEXIS 213826 (E.D. La. Dec. 1, 2023) a second chance, but it was short lived.  This case had been dismissed on statute of limitations grounds.  On appeal, the Fifth Circuit reversed that holding and remanded the case for the district

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California’s Proposition 65 has become a poster child for ineffective and counterproductive over-warning.  You know what we are talking about.  Prop 65 is the voter-enacted law that requires businesses to warn Californians about significant exposures to chemicals that allegedly cause cancer or birth defects.  See Cal. H&S Code § 25249.5 et seq.  A decent idea