Regular readers of the blog know and appreciate our focus (fixation?) on the learned intermediary rule. Not because it is fun to say and makes us feel smart. No, we follow and write on the learned intermediary rule because it is a cornerstone of the law on allegedly inadequate drug and device warnings. It holds
Alabama
ND Alabama Finds Plaintiff’s Shotgun Pleadings a Mortal Sin (and Preempted) (and no Personal Jurisdiction)

While two-fer Tuesday has that nice alliterative ring to it – three-fer Tuesday gives you more bang for your buck. Pleadings, preemption, and personal jurisdiction. Maybe trifecta-Tuesday?
Plaintiff in Froman v. Coopersurgical, Inc., 2022 US Dist LEXIS 120725, *2-3 (N.D.AL Jul. 8, 2022) filed her complaint alleging that she suffered an injury when a…
Eleventh Circuit Certifies Two Learned Intermediary Questions to Alabama Supreme Court

Today’s case is not new to us. A year and a half ago we were extolling the virtues of Blackburn v. Shire U.S., Inc., 2020 WL 2840089 (N.D. Al. June 1, 2020), for granting summary judgment where the testimony from plaintiff and his prescribing physician shot holes in proximate causation too large for a…
Nice Appellate Reversal of Unsupported Verdict against Hospital in Retained Instrument Decision from Alabama.
N.D. Alabama Delivers One-Two Punch – Part Two

Last week we posted about the Daubert decision in Lowery v. Sanofi-Aventis LLC, that tossed out both plaintiff’s medical causation expert and FDA expert. As promised, that was just the first blow. The knockout came in its companion decision granting summary judgement not just on medical causation but also on the grounds of preemption.…
N.D. Alabama Delivers One-Two Punch – Part One

It seems fitting that if we are going to talk about a one-two punch, we acknowledge the passing of boxing legend Marvelous Marvin Hagler. The undisputed middleweight champion from 1980 to 1987 whose boxing career started in Massachusetts but who started out a New Jersey boy. Only Jersey Understands Jersey!
From New Jersey to Alabama…
Generic Warning Case Barred by Learned Intermediary Doctrine

Nope, we didn’t bury the lead. Today we are talking about a generic, negligence per se, warnings case that wasn’t decided on preemption grounds. No Mensing. No Buckman. No preemption of any kind. Normally that would make us a little nervous, but no need. It was the learned intermediary doctrine’s day to be…
Medical Devices – Don’t Call Them Consumer Goods
Statute That Overturned Weeks Actually Overturned Weeks

For a few years, it seemed like we were blogging about the Weeks case every few months. Beyond providing an opportunity for temporal quippery, Weeks caught our attention because it was one of the holdout cases against the tide of cases rejecting Conte, the crappy California case that invented innovator liability. After the…
Learned Is As Learned Does

The Eleventh Circuit has lately become a bit like Forest Gump’s box of chocolates—you never know what you’re going to get. The news today is positive. The Eleventh Circuit recently issued a gem of an opinion on the learned intermediary doctrine under the law of Alabama, which also happens to be the home of the…