Since honoring the Ninth Circuit’s decision in Nexus Pharms., Inc. v. Cent. Admixture Pharm. Servs., Inc., 48 F.4th 1040 (9th Cir. 2022), as being our third best decision of 2022, we have been waiting for (and expecting) a court to apply it to a food labeling case. And now one has –
California
Federal Officer Removal Fails In California
It is a simple fact that product liability plaintiffs almost always prefer state court and product liability defendants almost always prefer federal court. This is a major reason why removal fights, sometimes intertwined with personal jurisdiction fights, happen so often in these types of cases. Another reason is that product liability plaintiff lawyers like to…
The Expanding Breadth Of Nexus
Back in 2020, we noted the possible broad implications of a Buckman preemption decision in a somewhat unusual economic loss case that turned on whether a compounded pharmaceutical needed FDA approval through an NDA. When that case, Nexus Pharms., Inc. v. Cent. Admixture Pharm. Servs., Inc., 48 F.4th 1040 (9th Cir. 2022), was affirmed…
Life-Saving Drugs and Chicken Bones: California Court Expands Innovator Duties of Care
We reported a few months ago on oral argument in the California Court of Appeal in Gilead Life Sciences v. Superior Court, where the parties argued about whether California law recognizes a broad “duty to innovate.” At issue was whether a product manufacturer could be liable to patients taking one drug for failing to…
Here Is Another Thing Wrong With Prop 65
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…
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…