Recently, largely related to the dubious pleasure of home ownership, we have had multiple occasions on which we were forced to shrug our shoulders and proclaim, “Nothing’s perfect.” To wit, we recently noticed a small wet spot on our bedroom ceiling. The roofing company discovered that the corresponding section of the roof was too shallow
Search results for: failure to read
A Healthy Dose of Proximate Causation Problems Makes a Plaintiff’s Failure to Warn Claim Go Away
By John Sullivan on
The plaintiff in Blackburn v. Shire U.S., Inc., 2020 WL 2840089, at *1-2 (N.D. Al. June 1, 2020), claimed that the drug Lialda caused his kidney disease and his doctor would not have continued prescribing it to him if the warning label recommended detailed and more frequent monitoring for renal disease, instead of simply…
SDNY Dismisses Contraceptive Case on Grounds of Preemption and Failure to Plead Fraud
By Stephen McConnell on
We are not surprised that some readers dissented from our judgment last week that the Billions series is trash, albeit fun trash. We should be accustomed to this sort of thing. Friends constantly pepper us with praise for allegedly realistic depictions of our business. It used to be predominantly about Law and Order, but…
S.D. Fla. Holds that Breast Implant Failure to Warn Claims are Preempted
By Stephen McConnell on
In Tinkler v. Mentor Worldwide, LLC, 2019 WL 7291239 (S.D. Fla. Dec. 30, 2019), the plaintiff claimed that a breast implant leached chemicals into her tissue, causing a constellation of symptoms known as Breast Implant Illness. Her lawsuit alleged that the manufacturer knew of this danger but failed to warn the implanting surgeon who,…
Washington State Court Rules that Pharmacy Cannot Be Liable for Failure to Warn
By Stephen McConnell on
We usually represent manufacturers, not pharmacies, in personal injury cases, so why should we care whether pharmacies can be on the hook? Well, if the pharmacy’s presence in the case prevents federal diversity jurisdiction, then solid case law shielding the pharmacy from liability will be crucial to our argument that the pharmacy was fraudulently/improperly joined.…
Guest Post – Paint It Black: The Ninth Circuit OKs RICO Liability For Failure To Warn About Drug Safety Risks
By Bexis on
Today’s guest post, about a bottom-ten RICO third-party payor action from (no surprise) the Ninth Circuit, is by long-time friend of the blog (and blogger in his own right), Jonah M. Knobler, of Patterson Belknap. We named one similar case, Kaiser Foundation Health Plan, Inc. v. Pfizer, Inc., 712 F.3d…
Warning Causation Sinks Another Generic “Failure To Update” Claim
By Steven Boranian on
It’s Delaware week here at the DDL Blog. A couple of days ago we brought you a particularly clear-minded order rejecting innovator liability in the First State (so nicknamed because Delaware was the first of the original 13 colonies to ratify the Constitution in 1787), and yesterday we reported on a pair of Delaware orders…
A Generic Drug Failure to Warn Claim?
By Michelle Yeary on
No. It can’t be. PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) took care of that. Just look at our generic preemption scorecard – the proof is there. The warnings on generic drugs must be the “same” as those on branded drugs. Generic drug manufacturers cannot unilaterally alter, amend, or change any warning and…
D. Mass. Misreads New York Law to Make Patent-Holders Potentially Liable for Pre-Market Testing
By Stephen McConnell on
It’s hard to escape the suspicion that blue states are more pro-plaintiff and red states are more pro-defense, though that is not a hard and fast rule. There are parts of Alabama and Texas where it is hard for an out of state corporate defendant to get a fair shake. Delaware and West Virginia also…
Supply Agreement Not Enough for Personal Jurisdiction (as if BMS hadn’t taught us that already)
By Michelle Yeary on
A complaint gets filed in California naming hundreds of plaintiffs, only 20 of whom reside in California, against out-of-state manufacturers. Sound familiar? Sound like something the Supreme Court rejected in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). It should. So, why are we here again? I guess you can credit…