We have made it no secret that we think the Ninth Circuit wrongly decided Stengel v. Medtronic.  That is the case where the Ninth Circuit reversed express preemption of claims involving a pre-market approved medical device by divining a “parallel” state-law duty to report adverse events to the FDA.  As we have said here

Last year’s list of the Ten Worst DDL cases was remarkable because all ten decisions came from appellate courts.  Yikes.  And it is not as if the bad appellate decisions were spread around.  Two came from our home circuit, the Third.  Two came from the reliably problematic Ninth Circuit.  But the ‘winner’ was the Eleventh

Last month, while grappling with an aphrodisiac false-advertising case, we joked that we felt like having a cigarette after reading the court’s opinion.  Today we get our cigarette.  Or, rather, our e-cigarette.  Today’s post is about a tobacco, not a drug or device case.  We aren’t squeamish about that, not one bit.  Before we worked on drug or device cases, we spent several years litigating tobacco cases.  It was good practice.  After dealing with tobacco cases, no internal documents worry us all that much.  Tobacco litigation is the ultimate challenge for a defense lawyer.   Judges and juries treat tobacco differently – and by differently, we mean worse. Much worse.  It was a point of faith among the defense hacks that many judges found occasions to reach down to some lower shelf and retrieve a Tobacco Rules of Evidence, which permitted judges to stiff the defendant in a myriad of ways.  This crazy, result-oriented one-sidedness was not confined to the judicial branch.  Remember how Florida passed an ex post facto law removing many tobacco affirmative defenses?

Moreover, tobacco litigation was good practice on the issue of preemption.  Most tobacco cases were and are about an alleged failure to warn.  But federally mandated warnings have been on cigarette packs for over 50 years.  One of the key express preemption decisions, Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), is about the effect of those warnings.  That case is as important as air and as clear as mud.  Lawyers and judges are still trying to figure out exactly what it held.  Does the express preemption provision for cigarette warnings blow a hole through all failure to warn theories?  Is there a distinction between failing to warn and affirmative deceit?  To  the extent they have to try to figure out the scope of preemption,  judges usually hate it.  Preemption is so powerful, so completely dispositive of plaintiff claims, that some judges regard it with the same degree of affection they harbor for the bubonic plague or the last season of Dexter.  During one sidebar in a tobacco case, the judge sputtered that preemption “boggled his mind and boiled his blood.”  No wonder, then, that his rulings on preemption were a tad sketchy.


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