For many years, even before the Supreme Court picked up the ball, we have been arguing that “stop selling” theories of liability for alleged injuries from prescription drugs should not be viable. This is not just a preemption issue. Basic product liability principles do not square easily with liability contingent on developing one drug
Recently, within the course of a couple of weeks, two different courts reached the same conclusion – that a plaintiff’s negligence per se claims, largely based on purported violations of the Food, Drug & Cosmetic Act (“FDCA”), failed to state a claim. See Disarro v. Ezricare, LLC, 2023 WL 6619445 (M.D. Fla. Oct. 11, 2023), and Alcozar v. Orthopedic & Sports Medical Center, ___ N.E.3d ___, 2023 WL 6302337 (Ind. App. Sept. 28, 2023). Another thing that these two opinions share is that neither of them relied on federal preemption in disposing of the FDCA-related negligence per se claims.Continue Reading Beating FDCA-Based Negligence Per Se Claims on Non-Preemption Grounds
We’ve written several posts about ridiculous absolute liability theories seeking to hold drug manufacturers liable simply for making an FDA approved prescription drug. Wilkins v. Genzyme Corp., 2022 WL 4237528 (D. Mass. Sept. 14, 2022), is an even stranger claim, with the plaintiff seeking to hold the defendant liable for not manufacturing a prescription drug. Fortunately, in Wilkins, those claims (several theories alleging essentially the same thing) did not state a claim.Continue Reading No Liability for Not Manufacturing a Product
Two weeks ago we blogged about the Georgia Supreme Court’s not-quite embrace of the apex doctrine limiting depositions of organization big-shots. In National Collegiate Athletic Association v. Finnerty, 2022 WL 2815848 (Indiana July 19, 2022), the Indiana Supreme Court did something similar. The Finnerty case was brought on behalf of college athletes against the
To borrow from the bartender with the twang and the bouffant at Bob’s Country Bunker, this blog’s got both kinds of medical products liability litigation – drug and device. And, while the difference between country and western music may be lost outside of Kokomo (and presumably Nashville), the difference between drugs and devices, admittedly
It’s football season! That means beautiful fall weather, tailgating, pots of chili, rooting your favorite team to victory, and wallowing in their losses. It’s Army v. Navy and Ohio State v. Michigan. It’s Packers v. Bears and Steelers v. Ravens. If you are a true fan of the game, it doesn’t matter that in a
Still more Zantac MDL dismissal orders.
Today’s installment grants dismissal of the plaintiffs’ medical monitoring claims, and also sheds some light on the questionable factual basis of everything being asserted in this MDL. As we’ve pointed out in our prior posts (such as this one), plaintiffs allege that the active ingredient in this drug
If hard cases make bad law, big cases make really bad law. No cases are bigger than product liability multidistrict litigations. Some have populations dwarfing the towns where many of you were raised. Perhaps it is the high stakes involved, or perhaps it is the judicial obsession with settling many thousands of cases ASAP, but
Uncertainty plagues American litigation and accounts for the frequent analogy to a lottery. The same case tried before two different juries will produce two very different results. Within the same jurisdiction, a plaintiff might ring the bell this week, but get zeroed out the next. Factor in different jurisdictions, and the possibilities will wander all
About two months ago we wrote the post Complaints Are Like Onions, They Have Layers about the need for courts to “address the viability of each claim” on a motion to dismiss. Bayer Corporation v. Leach, 2020 WL 3118509 at *1 (Ind. S. Ct. Jun. 12, 2020). Complaints need to be pulled apart and