California’s Proposition 65 has become a poster child for ineffective and counterproductive over-warning. You know what we are talking about. Prop 65 is the voter-enacted law that requires businesses to warn Californians about significant exposures to chemicals that allegedly cause cancer or birth defects. See Cal. H&S Code § 25249.5 et seq. A decent idea
California
Learned Intermediary Testimony Sinks Causation in California

Today’s case is about a very unfortunate set of circumstances. A woman who suffered from bipolar disorder and who was not trying to get pregnant did in fact become pregnant two months after being prescribed a mood stabilizer that carried a black box warning regarding birth defects. Fisher v. Abott Labs, 2023 U.S. Dist.
N.D. Cal. Sees No Standing or Merit in Eye Cosmetic Claims

Our best college era summer job was working as a staffer for the New Jersey State Senate. The Abscam investigation was ongoing, and it seemed that every week there’d be another empty seat in the Senate chamber courtesy of the FBI. Good times. We doubt we personally performed any services that were useful for Garden…
Potential Mallory Jurisdictional Silver Lining

Let us be clear at the outset. We were shocked and appalled by the 5-4 result in Mallory v. Norfolk Southern Railway Co., 143 S. Ct. 2028 (2023), holding that phony “consent” to general jurisdiction does not offend constitutional Due Process when a state statutorily declares something less than “at home” status − corporate…
SJS/TEN Case Survives Motion to Dismiss
SIRVA Case Dismissed on Preemption and Pleadings Grounds

We say today’s case is about SIRVA (shoulder injury related to vaccine administration), but plaintiff tried her best to run from that allegation in her opposition to defendants’ motion to dismiss. That’s because a SIRVA case runs up against not only a preemption obstacle, but also serious duty and causation barriers. But since the court…
Conspiracy Allegations Not Enough to Keep Barebones Complaint Alive in California

Plaintiff in Gurule v. Boston Scientific Corp., 2023 Cal. Super. LEXIS 49321 (Cal. Super. Jul. 18, 2023), tried to pull off a little magic through misdirection, but couldn’t fool the court. Plaintiff tried to distract the court from the complete lack of sufficient allegations to satisfy even notice pleading requirements by alleging an elaborate…
California Supreme Court Issues Landmark Opinion On Express Preemption

We do not often see state court opinions strongly endorsing federal preemption, or even weakly endorsing federal preemption. That is why we took notice last week when the California Supreme Court ruled unanimously that the Medicare Act expressly preempted state common-law and statutory claims against a health maintenance organization and a healthcare plan administrator. Most…
Ninth Circuit: Call a Spray a Spray – Butter Substitute Labeling Claims Preempted by the FDCA

We start with the usual poodle report – actually with a comment that these may be drawing to a close, as Luca is only a few points from finishing his championship and coming home. We suspect this will cause little grief for readers of this blog (the Drug and Device Law Rock Climber and other…
Onglyza — State Court Edition

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…