Search We the Jury

Plaintiff lawyers read this blog, which we like. Criticism occasionally comes our way because the blogposts – horrors! – harbor a particular point of view. And that point of view occasionally gets recharacterized as bias or an admission against our clients.  Such recharacterizations are invariably nonsensical. So far, they have never obtained even a foothold…

For design defect claims, a key issue is whether the relevant jurisdiction requires evidence that a suitable alternative design existed that would have allowed the plaintiff to dodge the alleged injury.  This blog has posted at length about alternative design requirements and their nuances.  These posts address everything from the existential question of “What…

Alabama has always had some rather unusual jurisprudence.  In product liability, the Yellowhammer State doesn’t have negligence or strict liability, but rather a hybrid called the Alabama Extended Manufacturers Liability Doctrine (“AEMLD”).  See Casrell v. Altec Industries, Inc., 335 So.2d 128, 132-33 (Ala. 1976).  More recently, the Alabama Supreme Court twice adopted the extreme pro-plaintiff innovator liability theory in Wyeth, Inc. v. Weeks, 2013 WL 135753 (Ala. Jan. 11, 2013), withdrawn and superseded, Wyeth, Inc. v. Weeks, 159 So.3d 649 (Ala. 2014).  On that occasion, the Alabama legislature overruled the court.  See Ala. C. §6-5-530.  More recently than that, the same court authorized plaintiffs to perjure themselves and claim that they would have ignored their doctors’ recommendations in order to claim causation in learned intermediary cases.  Blackburn v. Shire U.S., Inc., ___ So.3d ___, 2022 WL 4588887, at *11-12 (Ala. Sept. 30, 2022).  Most recently, and most notoriously, the Alabama Supreme Court declared frozen embryos to be people – at least for the purposes of tort law.  LePage v. Center for Reproductive Medicine, P.C., ___ So.3d ___, 2024 WL 656591, at *4 (Ala. Feb. 16, 2024).  Who knows? By 2030, Alabama might attempt to count blastocysts as “people” for purposes of the census – although not for tort purposes, since the legislature appears to have stepped in again.

We read another bizarre – if not nearly as notorious – Alabama law decision recently.  Ahmed v. Johnson & Johnson Healthcare Systems, Inc., 2024 WL 693078 (S.D. Ala. Feb. 20, 2024), reconsideration & certification denied, 2024 WL 947447 (S.D. Ala. March 5, 2024).  What’s bizarre about it?  It allowed a plaintiff in a medical device product liability case (hip implant) get to the jury without any medical expert testimony on causation.  Id. at *16 (entitled “Summary Judgment is not Required on All of Plaintiff’s Claims Even Though She Offers No Expert Evidence Regarding Medical Causation”).Continue Reading Another Weird Alabama Decision

Two years ago we posted on whether courts could exclude prospective jurors for cause because they weren’t vaccinated.  Not much precedent was then available. 

Now, with United States v. O’Lear, 2024 WL 79971 (6th Cir. Jan. 8, 2024), we get the first published appellate decision on the topic, affirming the exclusion.  (The Ninth Circuit…

Our work on “hard goods” (automobile, appliance, fire) product liability cases is greatly outnumbered by our drug and device cases (and probably also outnumbered these days by website privacy cases).  But the history of product liability has often been driven by such hard goods cases.  Think of Cardozo’s famous opinion in MacPherson v. Buick.…

As a defense lawyer, one grows accustomed to clear judicial days on which the state court can foresee forever.  See Thing v. La Chusa, 48 Cal. 3d 644, 668 (1989).  On those clear judicial days, when the court catches a glimpse of the possibility of harm shimmering off in the distance, one can be…

Patora v. Vi-Jon, LLC, 2023 U.S. Dist. LEXIS 153421 (S.D.N.Y. Aug. 30, 2023), is a typical express preemption decision resulting in dismissal of a typical consumer protection-based purely economic loss class action against an over the counter (OTC) product.  The plaintiffs, suing on behalf of a putative class, alleged that they purchased an OTC…

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn more about this book