Photo of Eric Hudson

We write a lot about the learned intermediary rule. There are 50 state surveys and  summaries of helpful decisions, as well as numerous posts on state-specific decisions. We tracked the development of the rule in jurisdictions like West Virginia and Arizona, and we’ve generally been pleased to report positive developments. At the end of 2024, though, we flagged the Himes case from California as one of the ten worst decisions of the year based on its novel approach to warnings causation.  Given our criticisms of Himes, we found it both bizarre and troubling to see the case cited recently by an MDL court in Massachusetts applying Pennsylvania law. Our colleagues in the plaintiffs’ bar are clearly advocating to expand Himes into other jurisdictions, and the defense bar should be ready to counter those efforts.Continue Reading Himes Makes a Sneak Appearance on the East Coast

Photo of Stephen McConnell

May the holidays treat you well.  We trust that none of you got burnt by any of the many hot things loitering around this time of year: yule logs, candles, figgy puddings, overloaded electrical outlets, and Aunt Sally’s line dancing after she downs a third eggnog. 

Today’s case is not exactly hot, but it’s got

Photo of Stephen McConnell

There was a time when it seemed that half our posts were mixed bags of TwIqbal — product liability claims tested against the SCOTUS decisions in Twombly and Iqbal requiring pleadings to be substantive and plausible.  Then things settled down for a bit.  Did plaintiffs get smarter?  Did courts resume tolerance for bare bones complaints?

Photo of Susanna Moldoveanu

We posted earlier this year about the failure to warn causation decision from the California Supreme Court in Himes v. Somatics, 549 P.3d 916 (Cal. 2024), and the potential parade of horribles that might ensue.  Here comes the grand marshal of the parade.Continue Reading California District Court Punts on Learned Intermediary Causation Post-Himes

Photo of Eric Alexander

We have no personal knowledge of the litigation concerning GLP-1 receptor agonist medications and the Blog has not posted on it yet, but we do know something about litigation over widely used prescription medications.  Over the decades, there have been many drugs or classes of drugs that became “blockbusters” because they were widely prescribed to

Photo of Steven Boranian

We reported last year on a case in which the Arizona Court of Appeals allowed FDA-approved drug warnings to define the standard of care for a physician’s informed consent.  Why does that matter?  Well, in most every jurisdiction, a plaintiff bringing an action for medical negligence has to produce expert opinion that the defendant breached

Photo of Eric Alexander

Even though lawyers who bill for their time defending product liability cases might favor those cases sticking around and plaintiffs getting many chances before inevitable dismissals with prejudice, we have been clear that we think plaintiffs should not get to re-plead around preemption once courts have defined the preempted path.  There seems to be an