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The Thrill of Victory – The Ten Best Prescription Drug/Medical Device Decisions of 2022

By Bexis on December 29, 2022

So, another year has passed. 2022 is in the books and the republic still stands, even if Roe v. Wade (and, soon, Twitter) do not. The COVID-19 pandemic – if not COVID-19 itself, which has instead become endemic – is largely over, except for some probably PREP Act preempted shouting.

For the Blog, the end of the year means that it’s time for our annual celebration of the Drug & Device Law Blog’s top ten decisions of the year. Some of these cases establish important legal principles, such as preemption, Rule 702 expert exclusion (don’t say Daubert), or the learned intermediary rule. Others are important because they affect large numbers of cases gathered in the increasingly dysfunctional federal multi-district litigation system. Some do both. In either event, these decisions make the legal world at least somewhat less dangerous for our clients and (not incidentally) more favorable for us defense lawyers.Continue Reading The Thrill of Victory – The Ten Best Prescription Drug/Medical Device Decisions of 2022

MDL Counterpoint

By Bexis on August 29, 2022

Not too long ago, we discussed the excessive indulgence of do-nothing plaintiffs in the Taxotere MDL – letting plaintiffs who took years just to serve their complaints slide. Continue Reading MDL Counterpoint

The Ten Best Prescription Drug/Medical Device Decisions of 2021

By Bexis on December 30, 2021

2021 is almost over. Before 2021 – indeed, before the last half of 2021 – practically nobody other than stargazers had ever heard of “omicron,” unless someone was part of some fraternity or sorority. Now everybody has. The omicron viral variant demonstrates, once again in real time (as had the delta variant before it)…

MDL Court: Pre-Approval Design-Defect Claim Not Preempted

By Andrew Tauber on December 16, 2021

In a ruling that is contrary to Supreme Court precedent, the district court presiding over the Zostavax MDL recently held that federal law does not preempt a state-law design-defect claim based on the manufacturer’s failure to seek FDA approval of a different, purportedly safer vaccine.

Zostavax, a shingles vaccine, received FDA approval in 2006. The…

Differential Diagnosis At Its Worst In Vaccine Litigation

By Eric Alexander on December 9, 2021

Recently, when we have spoken of vaccine litigation, it has mostly been about challenges to public health policies requiring vaccination against COVID-19 for healthcare workers, students at public universities, etc. We have been pleased to report that these challenges have been failing without lingering too long at the trial court level, like here, here…

Fascinating Implications of Legal Malpractice Claims in Zoster MDL

By Bexis on November 9, 2021

Here’s something we’ve never seen before in a mass tort MDL. In In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2021 WL 3375941 (E.D. Pa. Aug. 3, 2021), two former MDL plaintiffs who had suffered summary judgment against their claims were allowed to rejoin the MDL – to assert legal malpractice claims against…

Elysian Fields − The Top Ten Best Prescription Drug/Medical Device Decisions of 2019

By Bexis on December 31, 2019

Welcome to our annual Elysium tour, in which we electronically acknowledge the sweet nectar of victory flowing from the top ten drug/device product liability decisions of the year. It’s time to salute those fortunate decisions that brought the judicial Midas touch to our clients’ cases. We echo what we said last year: “we’re looking…

Pennsylvania Peculiarities No Bar to Removal Before Service

By Bexis on June 6, 2019

Last year was a banner year for removal before service, with both the Second and Third Circuits weighing in to support application of the removal statute according its terms, thereby giving their blessing to the so-called “snap” or “wrinkle” removal practice that this Blog has advocated for a decade. See Gibbons v. Bristol-Myers Squibb Co.…

No Mulligans in the Law

By John Sullivan on January 24, 2019

What’s done is done. No turning back. You can’t go home. Unreviewable play. No breakfast balls. All simple phrases, all meaning the same thing—finality.

The law certainly knows something about finality. That was made clear once again in Juday v. Merck & Co. (In re Zostavax (Zoster Vaccine Live) Prods. Liab. Litig.), 2018 U.S.…

Personal Jurisdiction Wins Cases – Part Many

By Bexis on January 14, 2019

That part of this title is borrowed from a fellow blogger’s post does not at all detract from its fundamental truth. Attention to personal jurisdiction wins cases – particularly in MDLs in which lawyers are out there recruiting clients, rather than the other way around. The latest example is In re Zostavax (Zoster Vaccine Live) …

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