Photo of Michelle Yeary

Last year, the federal court decision to exclude plaintiffs’ general causation expert in the In re: Onglyza and Kombiglyze XR Products Liability Litigation, MDL 2809 (E.D. Ken.),took a spot in our top ten best of 2022 (original post on that decision here).  Without a general causation expert, it is not surprising that summary judgement

Photo of Bexis

When we last visited the Zostavax MDL last December, over a thousand plaintiffs, all claiming shingles as an injury, had been dismissed because none of them could produce results from the only medical test that could establish causation.  We ended that post with:

The only claims left allege that Zostavax caused a hodge-podge of other injuries.  But it’s safe to say the nucleus of this MDL pretty much self-destructed.

Continue Reading Zostavax − Dredging the Dregs

Photo of Michelle Yeary

For many years, the “one-two punch” was our affectionate label for post-Mensing cases that prevent innovator liability and preempt generic liability.  But it’s been several years since we’ve used the expression this way because it was so effective in knocking out those cases, we just aren’t seeing them like we used to. 

Photo of Michelle Yeary

Almost a year ago we wrote a post called Learned Intermediary – Not Just for Failure to Warn about a California putative economic loss class action that was dismissed for failing to plead any allegations about whether the drug manufacturer had adequately warned plaintiff’s prescribing physician.  Fast forward about 9 months and we posted about

Photo of Rachel B. Weil

We are just back from a lovely long weekend in Mexico.   We were delighted to find, on our DVR, a show we’d forgotten we set to record:  a special interviewing the cast and director of Love, Actually on the 20th anniversary of that film’s release.  This is our all-time favorite holiday film, and pretty close to our favorite film of any genre.  We love how it has crept into popular culture (the SNL parody of the flip cards scene, featuring Kate McKinnon as Hillary Clinton is nothing short of brilliant), and we find the film endlessly charming and restorative, no matter how many times we watch it.   Take a look at the special, if you missed it

Speaking of all-time favorites, today’s case deals with warnings causation, our all-time favorite doctrine.  (Along with our co-blogger, Mr. McConnell, we just presented a CLE on this topic.)  This is the doctrine:  to prevail on a failure-to-warn claim in a prescription drug or medical device case, a plaintiff must prove both that the products warnings were inadequate and that the inadequate warning proximately caused the plaintiff’s injuries. Subject to variations of local law, the general rule is that, to prove the warnings causation piece, a plaintiff must adduce evidence that a different or stronger warning would have altered her physician’s decision to prescribe the drug or device. 

In Brennan v. Johnson & Johnson, et al., 2022 WL 17219513 (C.D. Cal. Nov. 18, 2022), the plaintiff alleged that the warnings provided with her pelvic mesh devices were inadequate.  She asserted failure-to-warn claims sounding in negligence and strict liability, and the defendant moved to dismiss both, arguing that the plaintiff could not prove that any inadequacy of the warnings proximately caused her injuries because her prescribing physician had not testified that she would have acted differently in the face of a different warning. 

Continue Reading Lovely Warnings Causation (and More) Mesh Decision from the Central District of California

Photo of Michelle Yeary

The world may never know how many licks it takes to get to the center of a Tootsie Roll Pop, but we do know it only took three judges on the California Court of Appeals to affirm a demurrer in Tootsie Roll’s favor. 

Did you know Tootsie Rolls first came on the market in 1896 and were originally delivered by horse and buggy?  Or that they were said to be Frank Sinatra’s favorite candy?  And long before the wise old owl bit into the Tootsie Roll pop, the candy was advertising on television dating back to the 1950s.  Tootsie Roll has had its home base in New York, New Jersey, and Chicago – where they are still manufacturing 64 million rolls every day.  So, what could possibly be wrong with a Tootsie Roll?  According to the FDA, nothing, and that’s why the court dismissed the putative class action in Beasley v. Tootsie Roll Indus., 2022 Cal. App. LEXIS 982 (Cal. Ct. App. Nov. 30, 2022). 

Plaintiff alleged that she consumed Tootsie Rolls from 2010 to 2016 apparently without knowing that they contained artificial trans fats in the form of partially hydrogenated oils (PHOs).  Note: PHOs were on the label.  Having consumed the Tootsie Rolls, Plaintiff alleged she was at an increased risk for conditions like cardiovascular disease and type 2 diabetes.  PHOs aside, Tootsie Rolls are essentially chocolate flavored sugar.  So, sure they play their role in all those nasty obesity-related health conditions.  But that cannot serve as the basis for an Unfair Competition Law (“UCL”) claim or an implied warranty claim.  As it turns out, thanks to very specific language from both the FDA and Congress, neither could the presence of PHOs before 2018.

Continue Reading How Many Judges Does it Take to Toss Out a Tootsie Roll Case?

Photo of Bexis

Readers may recall our dissection of the ridiculous application of offensive, non-mutual collateral estoppel in Freeman v. Ethicon, Inc., 2022 WL 3147194 (C.D. Cal. 2022).  Ultimately, the thumb that Freeman put on the scale didn’t matter, because the defendant won at trial despite that handicap.

We described the prior adverse decision that formed the ground for the collateral estoppel claim as “factual findings entered by a state-court judge after a bench trial in earlier false-advertising and unfair-competition litigation.”  That description doesn’t really do the prior decision (in)justice.  That decision, People v. Johnson & Johnson, 2020 WL 603964 (Cal. Super. Jan. 30, 2020), decided an action filed by the California attorney general that had essentially converted the allegations that product liability plaintiffs had been making against the defendants’ pelvic mesh into the basis for a statewide civil action under certain California consumer protection statutes.  Here is the result of that decision, in a nutshell:

Continue Reading Interesting Pelvic Mesh Due Process Certiorari Petition