Bexis knows that cases like Daughtry v. Silver Fern Chemical, Inc., 2025 U.S. App. LEXIS 11431, 2025 WL 1364806 (5th Cir. May 12, 2025), hit our sweet spot. It is a civil case, but it also emits a whiff of criminal law. It purports to be, among other things, a product liability case, but it turns
We reported about a year and a half ago on a Ninth Circuit opinion holding that the First Amendment prohibited cancer warnings required by California’s Proposition 65 because the warnings were government-compelled speech. Because there was no scientific consensus that the product at issue (glyphosate) causes cancer, the compelled warning failed intermediate scrutiny and thus
Science and law share a common goal—getting at the truth; but their relationship can be shaky. In areas like medicine and products liability, courts need to rely on science, but courts should not make science or get ahead of science. Science is a methodical process that relies on testing, peer review, and replication. When science
Medical device preemption should be straightforward. The statute could not be clearer. Federal regulation supplants state laws that would impose requirements that are different from or in addition to the federal requirements. But the law has evolved into a bit of a mess, with misreadings of certain approval/clearance pathways and inventions of exceptions, such as
The plaintiff in Kane v. Covidien LP, 2025 U.S. Dist. Lexis 25718 (E.D.N.Y. Feb. 12, 2025), lost the bulk of her case recently, on a motion to dismiss no less. In this case involving surgical staples, strict liability and negligence claims (which, in New York, are “functionally synonymous,” id. at *18) for design and
In the last few months, we have discussed two decisions rejecting claims made by plaintiffs in prescription medical product liability litigation that medical device manufacturers somehow had a duty to warn about claimed risks that occurred when their products were used (by physicians, of course) in conjunction with some other product. In Silverstein v. Coolsculpting
The Butler Snow contingent on the DDL blogging team had nothing to do with this post.
New York law is surprisingly good for defendants. Or maybe we’re jaded by bad experiences in other jurisdictions, and New York law manages to seem fair only by comparison. Certainly, we’d rather be in a courtroom in New York
And patience is a virtue…all great achievements require time…trust the process. All easier said than done. Waiting can be a breeding ground for discouragement or frustration—like in litigation where, unfortunately for defendants that waiting usually comes at the significant cost of having to defend against and conduct discovery. Especially when the result after all
Prescription drug warnings require FDA approval which dictates what the manufacturer can say in the product’s labeling. An exception to the FDA-approval rule is the Changes Being Effected (CBE) regulation which allows a manufacturer to unilaterally change a drug’s warnings “to reflect newly acquired information” and where the revision would “add or strengthen a contraindication
We hope we have some 1980s cartoon fans out there who will remember that G.I. Joe ended each of his cartoons with a PSA – “Now you know. And knowing is half the battle . . .” The PSA was usually about something dangerous kids did unintentionally—like running out into traffic. The idea was