Before we turn to today’s case, a quick update: when last we spoke, we were about to board a plane for Peoria – our first work trip in sixteen months. We were excited about it. We regret to report that we stepped out of the plane into something resembling a weird post-apocalyptic Mad Max movie.
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We Report on FDA-Based Failure-To-Report Claims – A Fifty-State Survey (Part 3)
Now that all three parts of our 50-state survey examining the state of state law concerning allegations that a defendant can state a common-law cause of action where the allegedly liability creating conduct is failure to make a statutorily mandated report to a governmental agency has been published, we have consolidated all fifty states under…
We Report on FDA-Based Failure-To-Report Claims – A Fifty-State Survey (Part 2)
Now that all three parts of our 50-state survey examining the state of state law concerning allegations that a defendant can state a common-law cause of action where the allegedly liability creating conduct is failure to make a statutorily mandated report to a governmental agency has been published, we have consolidated all fifty states under…
More Updates
This post is to update our readers about subsequent developments in matters covered in some of our prior blogposts.
First, slightly over a year ago we praised Gayle v. Pfizer, Inc., 452 F. Supp.3d 78 (S.D.N.Y. 2020), a prescription drug preemption decision holding, among other things, that a plaintiff could not claim “newly…
We Report on FDA-Based Failure-To-Report Claims – A Fifty-State Survey
Not too long ago we discussed the decision in In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp.3d 679 (D.N.J. 2021) (“TBI”). TBI addressed quite a few topics, one of which was the first nationwide (or close to it) analysis of whether a given jurisdiction permitted, under state…
Update on COVID-19 Litigation & Federal Jurisdiction
Those of you following the fortunes of COVID-19-related litigation should check out these two recently decided cases: Garcia v. Welltower OpCo Group LLC, 2021 WL 492581 (C.D. Cal. Feb. 10, 2021), and Fields v. Brown, 2021 WL 510620 (E.D. Tex. Feb. 11, 2021).
Garcia, the older of the two (by one day),…
When It’s Not Quite Physician Failure To Read
We have a long, 50-state survey post entitled “Don’t Forget About A Prescribing Physician’s Failure To Read Warnings,” about a subject as to which we feel strongly enough that we keep it updated on an ongoing basis. Its proposition is simple, and powerful: Under the learned intermediary rule, it is impossible to prove…
Failure-to-Report claims: An Up-Hill Battle
Most of the controversy in the recent decision, Hill v. Bayer Corp., 2020 WL 5367334 (E.D. Mich. Sept. 8, 2020), revolved around whether the plaintiff could assert a cause of action for failure to report adverse product events to the FDA. Like the great majority of decisions (particularly since Conklin v. Medtronic, Inc.,…
New York Chantix Case: Great on Preemption, Not So Hot on “Failure to Test.”
Recently, largely related to the dubious pleasure of home ownership, we have had multiple occasions on which we were forced to shrug our shoulders and proclaim, “Nothing’s perfect.” To wit, we recently noticed a small wet spot on our bedroom ceiling. The roofing company discovered that the corresponding section of the roof was too shallow…
Sixth Circuit Finds Failure to Distribute Medication Guide Claim Preempted
Being that it was the Sixth Circuit that allowed a failure-to-update claim to proceed against a generic manufacturer, when we got the recent decision in McDaniel v. Upsher-Smith Labs, 2018 U.S. App. LEXIS 17884 (6th Cir. June 29, 2018), knowing it was about whether a claim for failure to distribute a medication guide…