Ever since we rejected the concept of a constitutional “life interest” creating a right to use investigational, or even experimental, drugs in connection with the Abigail Alliance litigation back in 2007, we’ve been interested in what can be called “duty to supply” cases.  Our beef with the postulated constitutional right was that, if such a right were recognized, the next lawsuit would be against a pharmaceutical company to “enforce” that right.

Well, even without a right, precisely such a “duty to supply” claim was made in a case called Gunvalson, which because it was in our back yard, we covered extensively.  Our ex-colleague and co-founder, Mark Herrmann, even filed an amicus brief in Gunvalson, successfully urging the Third Circuit to reverse an order that would have required a manufacturer to supply an investigational drug outside of its investigation.

There have been a few more such suits, all thankfully unsuccessful.  In this post, we want to let any of our readers who share our eclectic interest in this topic know that the best law review article that we’ve ever seen on this topic has recently been published.  Here’s a link.  See William M. Janssen, “A ‘Duty’ to Continue Selling Medicines,” 40 Am. J.L. & Med. 330 (2014).  Free copies can also be obtained at the SSRN site here.  The article is comprehensive, indeed “comprehensive” doesn’t do it justice.  We’ve looked through it, and it discusses every major case on this topic.  It definitely goes far beyond the
usual function of law review articles of filling much needed gaps in the literature.


Continue Reading New Law Review Article About Duty To Supply Issues

We sometimes tire of reading cases, ours or others, base on the same old allegations about what the drug or device manufacturer allegedly did wrong.  It often seems that the plaintiff lawyers work from the same playbook, written, we suspect, by Velvet Jones.  So, we perk up somewhat when we see atypical allegations of liability.

We’ve been vigilant opponents of plaintiffs who would impose new duties upon drug and device companies with respect to products still in the development pipeline.  If plaintiffs are granted access to experimental drugs and devices on the grounds that the risks of using unproven products become irrelevant when no other alternatives exist, we argued that

The Third Circuit just issued its opinion in Gunvalson v. PTC Therapeutics (link here), the case in which a trial court issued an injunction requiring a drug company, PTC Therapeutics, to provide an experimental drug to a patient outside of the context of a clinical trial. (One of our many earlier posts on

The Associated Press reports this morning that Fred Baron received Biogen’s drug Tysabri to use as an experimental treatment for multiple myeloma “after a ‘legal basis’ for its use was found.”

We’re not quite sure what the legal obstacle might have been, but we wish both Baron and Biogen the best.

We were saddened to read that prominent trial lawyer Fred Baron is dying of multiple myeloma.

In a funny (peculiar, not funny “ha, ha” — there’s nothing “ha, ha” about this) way, it’s fitting that a legal twist would arise in the last days of his life.

We’ve posted before (here, here,

We’re thinking about the recent Abigail Alliance case again. As readers of this blog know, the en banc D.C. Circuit held on August 7 that terminally ill patients do not have a constitutional right to take unapproved drugs in the hope of a cure.

We did a short post on that topic, which the Volokh

We’re taking it on the chin in the “comments” over at the Volokh Conspiracy. Jonathan Adler linked to our post yesterday about the Abigail Alliance case, and the scholars are lining up to say that pharmaceutical companies are not “state actors” and so would never be compelled to provide experimental drugs to terminally ill patients.