Standing should not be a political issue. Ensuring that someone who initiates a lawsuit has enough of a connection to the alleged harm for which they seek redress from a court is a key part of the broader constitutional concept of justiciability. Because federal courts are courts of limited jurisdiction, they cannot decide just any
Generic Drugs
A Rare Application Of The Political Question Doctrine
Those of us who took Con Law as first year law students may recall Marbury v. Madison as an early test of the Supreme Court’s place in our nascent republic. Alliteration being a mnemonic device, some may recall that Madison was Secretary of State James Madison and the decision was written by Chief Justice John…
Third Circuit Affirms Mass Dismissal In Throwback Decision
Way back in September 2012, we—in its Blog-specific veiled singular usage—did our first post. We introduced ourselves with some rare first personal singular statements before proceeding to trash a Louisiana intermediate appellate court’s affirmance of a large verdict under Louisiana’s Medical Assistance Programs Integrity Law. Among our criticisms was the lack of detail on…
Punting Generic Drug Preemption In The Taxotere MDL
We have posted quite a bit about the Taxotere MDL and some Fifth Circuit decisions on appeals from it. The decisions have mostly been pretty good. We have posted even more about the treatment of broad preemption issues in MDLs in recent years. From our perspective, there have been too many denials of strong defense…
Third Circuit Upholds Dismissal of Generic Drug Claims
There’s more than one way to cook an egg. And, there’s more than one way to dismiss a case. In Bennett v. Teva, the district court decision was based on preemption. The Third Circuit took a different route basing their dismissal on TwIqbal. While we would have preferred an appellate win on preemption…
Generic Preemption win in New Jersey
Court Tosses Claims Against Manufacturer and Distributor of a Generic Drug
Earlier this week a district court dismissed claims brought against the manufacturer and the distributor of a generic drug, holding that all of the claims were preempted by federal law and the several also failed under Florida law. The decision, Hernandez v. Aurobindo Pharma USA, Inc., 2022 WL 204401 (M.D. Fla. 2022), is long…
Generally Applicable Implied-Preemption Principle Illustrated By Off-Label Generic Drug Case
Federal law regulates medical devices differently from pharmaceuticals, and branded drugs differently from generic drugs. Whether a particular state-law tort claim is preempted often depends on whether the claim involves a medical device, a branded drug, or a generic drug. Often but not always. As today’s case illustrates, there is one implied-preemption principle that applies…
“Pink Tax” Claim Hits Red Light
A short and sweet report today on Lowe v. Walgreens Boots All., Inc., 2021 WL 4772293 (N.D. Cal. 2021), a recent decision dismissing a putative class action that sought to assert a variety of California state-law claims against the sellers of a generic drug based on the drug’s labeling. The court dismissed three of…
Recent Second Circuit Implied-Preemption Decision Confirms That A ‘Major Change’ Is A Big Deal In Pharmaceutical Litigation
We’ll get to the recent Second Circuit decision, Ignacuinos v. Boehringer Ingelheim Pharms., Inc., — F.4th —-, 2021 WL 3438355 (2d Cir. 2021), in due course, but first some background.
One of our top ten decisions in 2018 was Gustavsen v. Alcon Labs., Inc., 903 F.3d 1 (1st Cir. 2018), an important implied-preemption…