Appellate Practice

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Dupree v. Younger, ___ S. Ct. ___, 2023 WL 3632755 (U.S. May 25, 2023), has nothing whatever to do with drugs, or devices, or product liability, but we bring it to our readers’ attention because of what it has to say about federal appellate procedure.  In Dupree, a §1983 action, the defendant sought summary judgment for the plaintiff’s alleged failure to exhaust administrative remedies – and lost.  Then the defendant went to trial, and lost again.  Id. at *2-3.

Then the defendant appealed.  But – oops – the defendant did not raise the exhaustion issue in his post-trial motion under Fed. R. Civ. P. 50(a).  Id. at *3.  In the Fourth Circuit, failure to renew any issue, even a purely legal one like exhaustion, on a Rule 50(a) post-trial motion waived that issue.  Varghese v. Honeywell International, Inc., 424 F.3d 411, 422-23 (2005).

Not anymore.Continue Reading Supreme Court Eliminates Appellate Procedure Trap for the Unwary

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The Eleventh Circuit’s recent decision in Rosell v. VMSB, LLC, ___ F.4th ___, 2023 WL 3398509 (11th Cir. May 12, 2023), has nothing whatever to do with prescription medical product liability litigation, but defense counsel should know about it because is rejects one trick that plaintiffs in complex litigation use to claim appellate jurisdiction.  Specifically, it rejects the concept of “partial dismissal” under Fed. R. Civ. P. 41(a), as a tool to create a final appealable order following partial dismissal of an action.Continue Reading Plaintiff Cannot Create Appellate Jurisdiction Through Partial Dismissal

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It’s hard to believe, but fully five months after COVID-19 was officially declared to be a “pandemic,” it’s still extraordinarily difficult to get oneself tested – particularly if one is not already sick or exposed.  Maine has been one of the most successful states in reducing the virus’ spread, with the third lowest rate of…

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We read Michelle Yeary’s recent post about In re Fosamax Products Liability Litigation, ___ F.3d ___, 2017 WL 1075047 (3d Cir. March 22, 2017), with particular interest.  We were especially intrigued with the research demonstrating that the Fosamax court had departed from numerous prior Third Circuit precedents (including an en banc decision) on the…

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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