According to the Supreme Court’s website, the current term is due to end on June 27. With no fewer than six cases of interest still undecided after today’s decision in Smith v. Bayer Corp., No. 09–1205 (U.S. June 16, 2011), it promises to be an interesting couple of weeks. There are only three
Just a quickie post about today’s Supreme Court oral argument in Smith v. Bayer, a copy of the transcript here. This is the case where the, once the Baycol MDL had denied class certification, the plaintiffs tried for certification of an identical class in West Virginia state court.
In the interim, as we
This just in: The West Virginia Supreme Court of Appeals today reversed that scary trial court decision that held a drug manufacturer to be bound by, and incapable of disputing, FDA-DDMAC “false and misleading” violation claims in warning letters. Here’s a copy of the opinion, encaptioned, West Virginia v. Johnson & Johnson, No. 35500,
We’ve already posted a couple of times about the Thorogood v. Sears, Roebuck & Co. case. Last week we put up a short post on the case. Before that, we contrasted Thorogood with some class certification opinions by Judge Posner that we disliked. The Thorogood case concerns washing machines, not drugs or devices, but the case gave Judge Posner the opportunity to say a load of things about class actions that we’ll likely be citing a lot over the next few years. The latest iteration is especially splendid, full of writing that is clean and well-starched.
Plaintiffs filed a purported class action on behalf of a half million purchasers scattered across 28 states plus the District of Columbia. The claim was that Sears falsely advertised that the drums in Kenmore washers were made entirely of stainless steel. Because part of the drum was actually not stainless steel, so the allegations went, clothes might acquire rust stains. Slip op. at 5. Moreover, calculation of actual damages would vary from consumer to consumer. Id. at 7. In short, individual, not common, issues predominated. That was the result of Appeal Number 1: no class.
After decertification, Sears made an offer of judgment for Thorogood’s suit in the amount of $20,000. That offer seems fairly generous, given that the maximum damage recovery under Tennessee law was $3,000. The $20,000 included a little something for attorney fees. But the district judge held that plaintiffs’ attorneys did not deserve any attorney fees and dismissed the case. Plaintiff’s attorneys appealed, claiming they had racked up $246,000 in attorney fees. The Seventh Circuit held that the claim for attorney fees was “beyond weak” because plaintiff had brought “a threadbare, idiosyncratic claim worth at most $3,000” and the effort to escalate it into a nationwide class had been “a flop.” Slip op. at 8-9. Sears shouldn’t have to subsidize such a flop and had merely offered to pay nuisance value. That was the result of Appeal Number 2: no attorney fees.Continue Reading There’ll Always Be Posner: Final Rinse
We’ll have more about it later, but anybody seeking to defend repetitive class action litigation should look at Judge Posner’s latest, Thorogood v. Sears Roebuck & Co., No. 10-2407, slip op. (7th Cir. Nov. 2, 2010), filed yesterday. The plaintiff filed a meritless – ordered decertified by a prior Seventh Circuit opinion – consumer
At this blog, we root for the drug industry.
Film at 11.
So the California Court of Appeal’s recent decision in Johnson v. GlaxoSmithKline, No. B199453, slip op. (Cal. Ct. App. Sept. 19, 2008) (link here), left us a little depressed.
Several different groups of plaintiffs have sued GlaxoSmithKline pleading that GSK deceptively
We haven’t yet read this one, but we like the sound of it.
Byron Stier, of Southwestern Law School, has posted at SSRN his manuscript, “Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts.” Here’s what the abstract tells us:
“If there are no prior inconsistent verdicts, non-mutual offensive issue preclusion generally allows
Under Daubert, what’s the persuasive value of one case report in a scientific journal or one investigator’s assessment that an adverse event in a clinical trial was “definitely” related to taking the drug?
Essentially nothing, right?
One stray assessment is not statistically significant. It has not been reproduced. It has no known error rate.
You’d probably expect that two guys whose idea of recreation includes commenting on drug and medical device product liability litigation would be members of the American Law Institute – and you’d be right. We both are ALI members, and it’s an outstanding organization through which many really smart and really dedicated people to donate huge