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.
Alabama
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…
Another PMA Preemption Victory

This one comes from Alabama and it’s pretty straightforward – plaintiff’s claims are preempted and therefore dismissed with a little wiggle room left for an attempted amended complaint. But as we know, for Pre-Market Approved (PMA) devices, there is only a “narrow gap” between express and implied preemption through which a claim must fit to…
Learned Intermediary Key in Risperdal Summary Judgment Win

Breaking news. This just in. Prescriber’s testimony linchpin in manufacturer’s victory over failure to warn claims. And the crowd gasped at this startling news. Actually, this news might be more the equivalent of an announcement that a 13 year-old boy made a snarky comment to his parents (current daily experience for this blogger). Not exactly…
Eleventh Circuit Confirms Alabama’s Strict Causation Standard and Clarifies the Elements of Informed Consent Claims

In Looney v. Moore, 2018 WL 1547260 (11th Circuit Mar. 30, 2018), the Eleventh Circuit confirmed Alabama law’s rejection of an “increased risk of harm causation standard and established that lack of informed consent plaintiffs must have a physical injury.
Looney is a clinical trial case. Parents of several infants who were born…