We posted earlier this year about the failure to warn causation decision from the California Supreme Court in Himes v. Somatics, 549 P.3d 916 (Cal. 2024), and the potential parade of horribles that might ensue. Here comes the grand marshal of the parade.Continue Reading California District Court Punts on Learned Intermediary Causation Post-Himes
California
N.D. Cal. Gives Plaintiffs a Mulligan on Group Pleading and Jurisdiction
Learned Intermediary Rule Still Alive and Well in California
We have a couple of updates on the learned intermediary rule in California. We reported to you three months ago on the California Supreme Court’s tweaking of the learned intermediary rule in Himes v. Somatics, and the tweaks were not good. As we wrote back then, the Court did not make any fundamental…
Snap Removal, and TwIqbal, and Preemption-Oh My
If you are of a certain age and are presented with a trio of items, we bet you sometimes add “Oh My” to the end of the list, as in Lions, and Tigers, and Bears-Oh My. Or, you think of other things that come in threes, such as the past and the present…
Duty to Innovate Before The California Supreme Court: The Briefs Are In
Both sides in Gilead v. Superior Court have filed their opening briefs in the California Supreme Court, and the extreme nature of the California Court of Appeal’s opinion extending a manufacturer’s duties has been laid bare. As expected, the defendant convincingly argued that the California Court of Appeal has imposed potentially unlimited liability on product…
Hip, Hip … Meh? N.D. Cal. Issues Mixed Bag of Rulings on Hip Implant Claim
We have often characterized judicial options as mixed bags, and a recent example of such a mixed bag can be found in Muldoon v. DePuy Orthopaedics, Inc., 2024 U.S. Dist. LEXIS 130020 (N.D. Cal. July 23, 2024). The plaintiff claimed injuries from a ceramic-on-metal hip implant. He alleged that friction and wear caused the…
California, There You Go, Right Back Where You Started From: Expanding Liability ViaNegligent Infliction of Emotional Distress
Decades ago, California had a well-deserved reputation for inventing new varieties of tort liability. California would hatch an idea to expand liability; law professors would churn out thought-pieces taking the theory in new and further directions; judges across the country would struggle with whether to adopt the concept or constrain it in some fashion; eventually…
Ninth Circuit Allows Private Enforcement of FDCA Requirements Incorporated by California’s Sherman Law
Two years ago, in Nexus Pharmaceuticals, Inc. v. Central Admixture Pharmacy Services, Inc., 48 F.4th 1040 (9th Cir. 2022), the Ninth Circuit held that the FDCA impliedly preempts private suits brought under state statutes that “rel[y] on the [FDCA], not traditional state tort law theory,” to define state-law requirements. We were so pleased with…
Cal. Human Tissue Shield Statute Bars Claims for Strict Liability and Breach of Warranty
Lokkart v. Aziyo Biologics, Inc., 2024 U.S. Dist. LEXIS 111265 (C.D. Cal. May 29, 2024), is yet another case arising from the unfortunate contamination of a batch of tissue allograft with a disease. We have written about similar cases before. These cases have consistently produced favorable precedent concerning state human tissue shield statutes (in…
This Is What The California Supreme Court Did With The Learned Intermediary Rule
The California Supreme Court issued its widely anticipated opinion on the learned intermediary rule the other day, and the opinion is worth the wait. Based on the oral argument (which we reported on here), we did not expect the Supreme Court to enact a fundamental change to the learned intermediary doctrine, and the Court…