We are writing about another tenofovir case. But this is not a product liability case or a foray into how far California law can be expanded to discourage innovation. See here, here, and here for some of the bad ones. Instead, this is a class certification ruling on a proposed class of
Search We the Jury
Same Drug, Different Result: Welcome to the Taxotere Time Warp
By Michelle Yeary on
If you ever needed proof that timing is everything, the Taxotere litigation has you covered.
Last month, a court denied summary judgment to the brand manufacturer, finding that it allegedly acquired “newly acquired information” post-dating Taxotere’s original FDA approval in 1996. This month, however, the very same court granted summary judgment to the …
Experts Matter (Shocking, We Know)
By Michelle Yeary on
Every so often a summary judgment decision comes along that makes you wonder whether the plaintiff thought the rules of civil procedure were more like suggestions. Neal v. Smith & Nephew Inc., 2026 WL 87302 (W.D. LA Jan. 12, 2026), is one of those cases.
The facts are familiar product liability territory. Plaintiff…
We Snap Back in Favor of Snap Removals
By Stephen McConnell on
This is a defense blog. Are we biased? Yes, we are. We come by that bias honestly, via temperament, principle, and client loyalty. We are happy to report on defense wins. If we report at all on plaintiff wins, it will be grudgingly and typically accompanied by heaping helpings of regrets and criticisms.
Have we…
Colorado Rejects No-Injury Medical Monitoring Claims
By Michelle Yeary on
There’s a saying that “everyone is entitled to their day in court.” Fair enough. But, to have your day in court, you have to have standing. While the requirements for standing vary from jurisdiction to jurisdiction, all courts require a plaintiff to have suffered an injury in fact. Afterall, the entire idea…
Venue? We’re Talking About Venue? Yes, Venue
By Eric Alexander on
As many of the Blog’s authors and readers wake up today, they will be in New York for the ACI Drug and Medical Device Litigation Conference. Clearly, the choice of venue matters when it comes to a conference. It also matters to plaintiff lawyers and the medical product manufacturers that they sue. The infamous…
Unreliable Specific Causation Opinions Take Down Valsartan Bellwether
By Eric Alexander on
Back in April, we pondered whether the new judge in the Valsartan MDL would change things for the better. In contrast to the Zantac MDL, which was established a year later and has proceeded on a very similar contamination theory, the first several years of the Valsartan MDL saw a bunch of bad rulings on…
D. Delaware Dismisses Class Action in which Named Plaintiffs Alleged No Injury
By Stephen McConnell on
Whenever we see a class action in which the named plaintiffs suffered no injury, we throw up our hands and think that the invention of class actions was a wrong turn in American legal history. But when we see a case like Klosowski v. FPG Labs, LLC, 2025 WL 2532500 (D. Del. Sept. 3…
Jacobson Weathers Its Second Pandemic
By Bexis on
Back in 2021, COVID-19 vaccines were becoming widely available, and we saw the likelihood of vaccine mandates on the horizon. We researched the legal implications, and it didn’t take us long to figure out that Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), is the 500-pound gorilla precedent in this area. An anti-vaxxer in Jacobson claimed that Due Process precluded him from being prosecuted for violating a municipal mandatory smallpox vaccination order. He lost:
[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.
197 U.S. at 26 (emphasis added).
But the Jacobson gorilla is a silverback – decided well over a century ago at a time when “Due Process” often meant something much different than it does today (Jacobson was decided in the same term as Lochner v. New York, 198 U.S. 45 (1905)). Thus we devoted our “Survival of the Vaxxest” post to marshalling all of the precedent that had followed Jacobson during those 116 years, including several more recent Supreme Court decisions: Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 888-89 (1990); Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944); Zucht v. King, 260 U.S. 174, 176 (1922), see South Bay United Pentecostal Church v. Newsom, ___ U.S. ___, 140 S. Ct. 1613, 1613-14 (2020) (Roberts, C.J. concurring in denial of certiorari). We did that so that those defending vaccination requirements wouldn’t have to, since they might not have the kind of resources that we, as big-firm lawyers, do.
It is now over four years later. How well did Jacobson weather the COVID-19 storm?
As this post demonstrates, pretty well.
Continue Reading Jacobson Weathers Its Second PandemicDouble Shot Thursday: Express Preemption Based on an OTC Drug Monograph and The Delaney Clause and Personal Injury Litigation— FDA Delists Color Additive Red No. 3, But Will It Be Enough to Attract Even Dyed-in-the-Wool Plaintiffs Lawyers?
By Eric Alexander on
Like the radio stations of yore did with songs, we offer up two related posts back-to-back instead of the usual one. We cannot offer a “favorite artist” as the source of consecutive songs, we offer two posts that relate to the legal implications of some of the typical things that FDA does and has been…