The defense response to so many plaintiff allegations amounts to: so what? What difference did the complained of conduct make? Think of medical causation. Or think of warning causation in the context of a learned intermediary. In securities cases or, closer to our DDL hearts, False Claims Act cases, the ‘so what’ arrives dressed in
Search results for: fca
Latest Report from the Front
By Bexis on
We’ve already provided two “reports from the front” about how the federal government is faring in False Claims Act cases where it has moved to dismiss actions over the objections of the relators supposedly pursuing recovery in the government’s name. Here’s a third one, about Polansky v. Executive Health Resources, Inc., ___ F.4th ___,…
It’s Back! It’s Wayback! It’s Away, Wayback! It’s Admissible!
By Bexis on
With apologies to Harry Kalas.
Bexis had a couple of encounters with the “Wayback Machine” (a/k/a/ the “Internet Archive”) recently. If you don’t know what that is, it’s digital library of Internet ephemera – web pages and the like − that have since been taken down, revised, or otherwise have become unavailable in…
What To Make of the Dan Abrams Case?
By Bexis on
The recent appellate False Claims Act (“FCA”) decision in Dan Abrams Co. LLC v. Medtronic Inc., ___ F. Appx. ___, 2021 WL 1235845 (9th Cir. April 2, 2021), has us scratching our heads. It’s like riding a legal roller coaster. Some parts are really high, and others are really low.
Bexis first ran across…
Update from the Front
By Bexis on
Not long ago we brought you a report from the False Claims Act (“FCA”) front on how the government was doing with its attempts to prune back some of the worst abuses of FCA litigation – particularly the advent of “professional relators.” In that earlier post, we discussed the two major approaches that courts…
District of Massachusetts Calls Plaintiffs’ Experts on their Shenanigans
By Michelle Yeary on
Plaintiffs’ experts do a lot of stupid things. We’ve dedicated whole posts to them – here and here, for example. Now we have another trick to add to their growing list of shenanigans – plaintiffs’ experts turn FCA relators. That’s right, two of plaintiffs’ experts from the DePuy Orthopedics hip implant litigation are trying…
DDL Mock Draft
By Stephen McConnell on
Over the past seven weeks we have been sports-starved. Back episodes of The Great British Baking Show do not quite make up for missing the start of baseball season and the NBA and NHL playoffs. But two things have ridden in to the rescue: (1) The Last Dance, the ESPN ten-part documentary about the…
Allina Comes to Our Neck of the Woods
By Bexis on
Last term, in a case that the Blog completely ignored, the Supreme Court held that a provision of the Medicare Act, 42 U.S.C. §1395hh(a)(2), required the Centers for Medicare & Medicaid Services (“CMS”) to subject all Medicare-related determinations “that establish[] or change[] a substantive legal standard” to formal notice-and-comment rulemaking. Such determinations explicitly include (as…
“ALI” Should Not Mean “Always Liability Increases” – Apportionment Misadventures
By Bexis on
For several years, Bexis has served as an Advisor to the American Law Institute’s (“ALI”) Third Restatement of Torts, Intentional Torts to Persons project. These things, by their nature, take a long time, but this particular project is drawing to a close. Unfortunately, however, the last part of the last section of the last draft…
The First Circuit Creates Havoc By Ignoring Facts And An Elephant In The Room
By Eric Alexander on
We all know the phrase “the elephant in the room.” There are some things that do not get mentioned that are so obviously relevant that silence about them, or willful ignorance of them, can be humorous or frustrating. Based on our not-so-extensive research, we see that the origin of the fairly widespread use of this…