It is not uncommon that terms are used without knowledge of their origin and that the origin is instructive about the meaning or proper application of the term. We offer two examples. Many lawyers who at least dabble in product liability litigation have heard the term “Bradford Hill criteria.” Was it named after two different
Listen to your gut. Follow your instincts. Trust your intuition. Great advice in many situations. Like deciding whether to buy skinny jeans or whether to buy your forever home. Or, when things seem “off” or feel “dangerous.” Or, when your body is trying to tell you something about your health. These are all times to
A recent published opinion from the Ninth Circuit covers two issues near and dear to our hearts—federal preemption and claims based on outside laboratory testing. We care about federal preemption because . . . well, because we are the Drug and Device Law Blog, where there are some weeks when we write on preemption every
We are headed to Guitar Town. That’s Nashville to you. Guitars are played and guitars (including the magnificent Gibson ES-335) are made there. We aim to sample plenty of live music and hot chicken. But the reason for our trip is the Defense Research Institute (DRI) Drug and Medical Device Conference. Tomorrow we will be
We are on a DRI panel this September in Nashville discussing challenges to expert testimony, so we are especially vigilant when it comes to new cases on this subject. The rulings on expert admissibility in United States v. Biogen Idec., Inc., 2022 U.S. Dist. LEXIS 120549 (D. Mass. July 8, 2022), are not especially
A very helpful to-be-published opinion from the California Court of Appeal caught our eye this week because it comes out the correct way on an issue that has always bothered us: Does a defendant (not the plaintiff) in a product defect case have to offer evidence on medical causation to a reasonable degree of medical
The “mesh case of the week” — Robinson v. Ethicon, Inc., 2022 U.S. Dist. LEXIS 36441 (S.D. Texas March 2, 2022)— is a veritable mixed bag. We cannot decide whether to carry that bag from the car trunk to the kitchen table or just heave it in the dumpster.
The issue in Robinson was
We posted just the other day about widespread judicial reluctance to follow the expert admissibility standards imposed by Federal Rule of Evidence 702. We called out the Eighth Circuit as a prime example of that problem, and we discussed the committee-approved amendments to Rule 702 that are intended to reinforce the need for expert opinions
The California Court of Appeal has finally filed its opinion in the much-discussed talc ovarian cancer case, Echeverria v. Johnson & Johnson, No. B286283, 2019 WL 3001626 (Cal. Ct. App. July 9, 2019), and while it is not a complete win for the defense, it was close, and there is much to talk about.
People supplement a lot of things. You can supplement your diet with a multivitamin. You can supplement your income with a part-time side job. On the DDL Blog, we are always supplementing our scorecards and cheat sheets. Generally speaking, supplement is a pretty common word and has a fairly universally accepted definition. A supplement is an add-on. Something you do to make something more complete. Does the food you eat contain vitamins and minerals? Sure. But that multivitamin adds to it. It’s a boost.
In litigation too, we do a lot of supplementing. In fact, we are required to do so. Federal Rule 26(e) requires a party to supplement its discovery responses if it “learns that in some material respect the disclosure or response is incomplete or incorrect.” This duty to supplement extends to expert reports as well. Fed.R.Civ.P. 26(e)(2). But what does it mean to “supplement” an expert report? And when does supplementing to make a correction or completion go too far?
Plaintiffs got the answer to that question in U.S. ex. rel. Brown v. Celgene Corp., 2016 U.S. Dist. LEXIS 156826 (C.D. Cal. Aug. 23, 2016). Plaintiff-Relators brought a False Claims Act and Medicare Anti-Kickback Statute case against defendant alleging it illegally marketed Thalomid and Revlimid off-label and paid kick-backs to physicians for prescribing off-label. Id. at *6. The court set a deadline for the expert reports and relators timely served a report from their damages expert. Shortly thereafter, however, relators sought leave to supplement that expert report based on late produced Medicare data. Id. at *6-8. Relators wanted to time to analyze the data and supplement the report with that analysis. Relators also represented that while the supplement would be based on new data, the opinions were not expected to differ significantly. Id. at *8. The court granted the leave requested. Defendant was likewise given an opportunity to amend its expert reports in rebuttal and relators’ expert was deposed after his supplemental report was served. Id. at *11.Continue Reading Plaintiffs Learn Supplementing Isn’t a Second Bite at the Apple