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
Search We the Jury
SDNY Dismisses Economic Injury Class Action Based on Express OTC Preemption
By Stephen McConnell on
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…
One Weird Old Trick For Docket Management
By Lisa Baird on
Florida courts are handling a lot of lawsuits. Lots and lots of lawsuits, and for a convergence of reasons. Backlogs from pandemic-related closures and delays. The highest per capita rate of federal court personal injury cases in the country by some measures. Claims over last year’s Category 4 Hurricane Ian. Recent tort law changes…
Professional Plaintiff’s Consumer Protection Claims Were Hard To Swallow
By Eric Alexander on
Long, long ago, when we clerked for a federal district judge, we handled more than a few prisoner cases. We have to confess that many of the ones we saw were humorous to us, because they alleged a range of perceived slights and personal affronts as violations of their constitutional rights. (As readers know, we…
Guest Post – More on Expert Gatekeeping in West Virginia
By Bexis on
Shortly after we recently posted our 50-state survey of state law concerning expert “gatekeeping,” we received a thoughtful email from friend-of-the-Blog Tom Hurney, of Jackson Kelly, informing us that there were additional gatekeeping-related issues in West Virginia that our search – limited to cases using the word “gatekeeping” – did not reflect. His…
Some Welcome Clarity on Preemption
By Stephen McConnell on
Every once in a while in this space we summarize law review articles. In the course of doing so, we typically pat ourselves on the back by announcing that we read such articles so that you don’t have to. That is not true with the article we are discussing today, Goldberg, Gramling, & O’Rourke, “A…
Mifepristone Manufacturer Wins First Round in West Virginia
By Bexis on
Over the past few months, Bexis, with the substantial help of several Reed Smith associates, has prepared a law review article – “Federal Preemption and the Post- Dobbs Reproductive Freedom Frontier” – which will soon be published in the Food & Drug Law Journal. A draft of this article is now available on SSRN.
The core premise of Bexis’ article is very simple: Once the FDA has said “yes” and approved a particular drug for a particular indication (“intended use”) for sale in the United States, federal preemption precludes any state from saying “no” and trying to ban that same FDA-approved drug. It doesn’t matter whether that drug is morphine, methadone, minoxidil – or mifepristone.
Continue Reading Mifepristone Manufacturer Wins First Round in West VirginiaAlternative Design Issue Certified to West Virginia High Court
By Bexis on
Quick – when’s the last time that a federal court of appeals certified a pro-plaintiff ruling to the relevant state supreme court?
We don’t remember either.
Continue Reading Alternative Design Issue Certified to West Virginia High CourtLive Free, or at Least Have a Present Injury
By Bexis on
One of the most fundamental limitations on tort liability – all tort liability – is that a plaintiff must suffer an injury before s/he can bring a lawsuit. As Judge (later Justice) Benjamin Cardozo, held “[p]roof of negligence in the air, so to speak, will not do.” Palsgraf v. Long Island Railroad Co., 162 N.E. 99, 99 (1928) (citation omitted). Or, as Professors William Prosser and Page Keeton, put it in their treatise:
Continue Reading Live Free, or at Least Have a Present InjuryWestern District of New York Gives Plaintiff Fourth Try to Plead Her Claims
By Michelle Yeary on
Second chances, sure. Two bites at the apple, we see it all the time. Three strikes before you are out, fairly common. But a fourth amended complaint to cure basic pleading deficiencies? That seems overly generous by any standards. Well, almost any standards because that is what plaintiff got in Greenwood v. Arthrex, Inc.…