We hope all our readers had an excellent holiday-of-your-choice.  We did, and we’re back just in time for our favorite (and nearly last) post of the year, our choices for the best prescription medical product liability decisions of 2012.  This time, we have to admit, there’s no obvious winner, since the year passed without a

Do we have to? That depends on whether we mean “must” or should.”  There’s relatively little that’s really a “must,” but quite a bit that’s a strong “should.”  So yes, we have to.  It’s that time of year again, and we’re looking back over the past twelve months for the decisions that, in this instance,

Happy Christmas/Hanukkah/solstice and Merry New Year to all our readers.  May your 2012 be filled with winning arguments, TwIqbal dismissals, and summary judgments.  There’s not much of 2011 left now, although we’d be overjoyed for one or more last-minute decisions to come down and warrant a change to the list that follows.

What list is

Here we go again.  At the end of every year, we look back over the past twelve months – the highs and the lows – the thrill of victory and the agony of defeat.  We always start with the agony, however, and this year’s no exception.  Despite our best efforts, our side didn’t win everything

The last couple days’ dialogue with our subscribers suggests that the blog’s email outage was uneven.  Some subscribers may have lost email transmission of our post for more than a month.  We’ve already apologized, but we think we should do more.  Here’s a list of what we posted about – with links – between June

We’ve more than once voiced our admiration for the bloggers over at Abnormal Use. They’re smart and funny. They know a lot about the law. They may even know more about comic books. And they know a lot about popular music. How do we know this? Because every time we whisper a word about popular music in one of our posts we receive a prompt corrective from those guys — usually Jim Dedman. In side conversations with Jim, we’ve learned of his deep affection for rock music. Sometimes his taste seems right on, sometimes it’s appalling (DEVO? Really?!), but it’s always impressive in some way.

Recently, we were chatting with Jim about law-related songs, and agreed that we would simultaneously each put up a post (here’s theirs) discussing our favorite law songs. Whether we produce harmony or cacophony is for you to decide.

There are already several websites that cover similar ground, though none really does the subject justice. It turns out that there are a lot of songs about the law, both famous and obscure. Here are some examples of the latter:

Better Get a Lawyer” – Cruel Sea
Philadelphia Lawyer” – Woody Guthrie
Me and You (I’m Like a Lawyer With The Way I’m Always Trying To Get You Off)” – Fall Out Boy
Our Lawyer Made Us Change The Name Of This Song” – Fall Out Boy
Annie the Imaginary Lawyer” – The World/Inferno Friendship Society
Why A Lawyer” – Steve Hefter And Friends Of Friends
Courthouse” – NAS
Beautiful Lawyers” – The Zincs
Lady Lawyers” – Oxford Collapse
We Love Our Lawyers” – Cibo Matto
Lovers Need Lawyers” – The Good Life


Continue Reading Silly Law Songs

We’ve been blogging now for more than four years. Our first substantive posts went up on November 15, 2006, and by now more than 1450 have followed those.

Frankly, even for us, it’s getting hard to find stuff.  And since we actually wrote all these blasted posts, and presumably remember at least some of what’s

We hope all our readers had excellent holidays, didn’t get stranded in the snow (here on the US East Coast), and received lots of desired presents due to what the economic stats we’ve seen are saying has been a better than expected retailing season.  That is, it’s better than expected if you’re a retailer or a recipient.  For those of us who have to pay the bills … well, we won’t go there and ruin the good cheer.

Good cheer it is, too, as today’s post is devoted to our favorite drug/medical device judicial decisions of 2010.  There’ve been a raft of good decisions, although none from the United States Supreme Court, for all us practitioners on the right (in more ways than one) side of the “v.” to be thankful for.  Indeed, we confess that depending on the day, any of the first three cases could have been ranked as number one.  We’ve changed the rankings ourselves since we first started thinking about this list a couple of weeks ago.

So here are our best of 2010 – the decisions that had us happily typing away on “breaking news” and other posts throughout the year.

1. UFCW Local 1776 & Participating Health & Welfare Fund v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010).  Stick a fork in economic loss class actions derivative of supposed product liability defects – they’re done.  That’s what we thought when we first read this widely anticipated decision, which reversed the #2 worst decision of 2008.  Third party payers cannot prove reliance on a classwide basis even under what plaintiffs considered their last, best hope of a theory, RICO.  Try as they might, purveyors of class actions can’t escape the intensely individualized medical decisionmaking process that underlies any prescription of drugs (and presumably medical devices).  Whether it’s called “reliance” or “causation,” allegedly inadequate information must affect a doctor’s prescription decision, and the gambit of using TPPs as proxies doesn’t obscure that fact.  We ultimately put this Zyprexa decision first because of its broad implications for all of our clients, particularly if the result had gone the other way.  Unless the Supreme Court were to change class action law adversely in the pending Dukes case (unlikely), we don’t think there’s much of a future for class actions (economic loss or otherwise) based upon supposed safety defects in drugs.  We discussed the decision as breaking news here and in more detail here.

2. Bryant v. Medtronic, Inc., 623 F.3d 1200 (8th Cir. 2010).  Here, we had to decide whether to go with an industry-specific, or a state-specific case.  Then last week the Seventh Circuit forced our hand by dropping Bausch on us like a humongous lump of coal into our stockings.  That moved Bryant up because, if not for Bryant, the entire post-Riegel preemption model we’ve been advocating for two years might have been knocked down by one adverse circuit decision (shades of Mason).  But with Bryant as the first appellate decision, we’ve got a direct circuit split, with perhaps an avenue to the Supreme Court (and the Medtronic folks must be tearing their hair out watching their competitors mess up the law).  Anyway, Bryant demonstrates the power of preemption, affirming our #7 best case of 2009 and defeating an entire MDL at a stroke.  The opinion is great on preemption principles, particularly the interplay between express and implied Buckman preemption in parallel violation claims – something we’ve consistently advocated on this blog.  Bryant is an absolute must read for any PMA medical device defendant thinking about a preemption motion.  For good measure the Eighth Circuit also trashed the “suspect motives” behind the plaintiffs’ attempt to recuse the judge.  And to think, but for a fortuitously delayed settlement, Bryant almost never saw the light of day.  We rather gleefully blogged about Bryant here.


Continue Reading Top Ten Best Prescription Drug/Medical Device Decisions Of 2010

We’re doing it again. At the end of the year, we like to look back over where we’ve been for the past twelve months.  As always, that long and winding road had a few bumps along the way.  It’s the jarringness of those bumps that we’re rating today.  That’s right, just as we’ve done for

Good tidings and great cheer. Merry Christmas, Happy Hanukkah, Kool Kwanzaa, Super Solstice – whatever holiday you’re celebrating. What is there to celebrate? Well, for the moment we can all celebrate our top ten favorite drug and medical device decisions of 2009. While we don’t have a Supreme Court star at the top or our