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Judge Tjoflat did it up in a big way a couple of weeks ago in Lowery v. Alabama Power Company, Nos. 06-16324 & 06-16325, slip op. (11th Cir. Apr. 11, 2007). We’re not sure if we’re providing a link to the case itself or to the “opinions” page of the Eleventh Circuit website; if we’ve…

We were excited two years ago when we read the legislative history of the Class Action Fairness Act of 2005 (“CAFA”). The Senate Judiciary Committee clearly intended CAFA to reverse the traditional burden of proof on remand motions. Before CAFA, the party seeking to invoke federal jurisdiction — the defendant who removed the case —…

We read at the Mass Tort Litigation Blog about Professor Samuel Issacharoff’s forthcoming article on choice of law in class actions that will appear in the Columbia Law Review. Professor Issacharoff apparently argues that the enactment of the Class Action Fairness Act lends strength to the position that courts should apply a defendant-corporation’s home state…

In an order entered on Thursday, December 7, in the Zyprexa litigation, Judge Weinstein requested further briefing on a motion to remand. Along the way, he noted his frustration with the fact that the Class Action Fairness Act of 2005 allows removal only of certain class actions and mass actions, but not of all state…

Recently we discussed the latest opinion in the ongoing “controversy” over the application of Pennsylvania’s comment k across-the-board rule to cases involving medical devices.  Douglas v. Atrium Medical Corp., 2024 WL 4364950 (M.D. Pa. Sept. 20, 2024).  We use “controversy” advisedly, because as Douglas held, there is “no substantial ground for difference of opinion…

Long ago, a senior partner told us that clear writing flows from clear thinking. That might be so, but clear thinking and clear writing do not necessarily produce the correct result.  For example, you’d have a tough time finding a legal opinion written more clearly than Calchi v. Topco Assocs., LLC, 2024 U.S. Dist.

Without detouring into a larger discussion on the impacts of humans on the environment and our fellow animals, we can say that we are big fans of the other extant great apes.  Our puppy’s fascination with nature documentaries has helped pique that interest of late.  Our gingery cousin the orangutan, the largest primarily arboreal mammal…

As we discussed at length in this post, since the 1940s, the Pennsylvania Supreme Court and other courts applying Pennsylvania law have refused to subject prescription medical products to strict liability.  That is significant because, unlike (now) every other state in the country, since 1987 Pennsylvania precedent prohibited defendants from introducing evidence of their…

A notorious class-action troll took it on the chin in MSP Recovery Claims, Series LLC v. Exactech, Inc., 2023 WL 4066635 (E.D.N.Y. June 14, 2023) (“MSPRC”).  The troll’s modus operandi is to claim it has assignments of rights from certain fellow-traveling Medicare Advantage Organizations (“MAOs”) and try to turn those into class actions against targeted defendants – usually primary insurers.  A search for this plaintiff’s name (MSP) appearing in the same opinion as this assignor (Summacare) pulled up no fewer than 23 hits on Westlaw.

In MSPRC, however, this prolific litigant tried to branch out beyond its usual Medicare Secondary Payor claims into more general third-party payor (“TPP”) litigation.  That didn’t turn out well for the troll.  Indeed, MSPRC looks like the litigation equivalent of the troll being knocked out with its own club.

Continue Reading Medicare Secondary Payor Troll Bounced from MDL

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.
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