On the internet, “because reasons” is the default when you don’t have the time or energy to explain why something is correct, but you are sticking with your viewpoint nonetheless.
It is the opposite of what our profession expects from lawyers and the courts: We all are supposed to explain, with crystalline clarity, why our
Taking pot shots at “Big Pharma” is easy. Crack a joke about Big Pharma and you are sure to get a laugh. Amirite?
That is not to say there is never a fair point or two to be made about pharmaceutical development or marketing, or health care and the delivery of same in this country.
We write a lot about the learned intermediary rule. There are 50 state surveys and summaries of helpful decisions, as well as numerous posts on state-specific decisions. We tracked the development of the rule in jurisdictions like West Virginia and Arizona, and we’ve generally been pleased to report positive developments. At the end of 2024, though, we flagged the Himes case from California as one of the ten worst decisions of the year based on its novel approach to warnings causation. Given our criticisms of Himes, we found it both bizarre and troubling to see the case cited recently by an MDL court in Massachusetts applying Pennsylvania law. Our colleagues in the plaintiffs’ bar are clearly advocating to expand Himes into other jurisdictions, and the defense bar should be ready to counter those efforts.Continue Reading Himes Makes a Sneak Appearance on the East Coast
This time of year, many of us are focused on the NFL playoffs. For someone who watches the Super Bowl for the commercials or the halftime show, which team wins may not matter much. For those devoted to a particular team, however, there is one possible result that will be truly satisfying. The reality is
In Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008), the court, applying California law, correctly “decline[d plaintiff’s] invitation to create a new exception” to that state’s privity requirement “that would permit [plaintiff’s] action to proceed.” Id. at 1023-24. “[A] federal court sitting in diversity is not free to create new exceptions” to state law limiting liability. Id. at 1024 (citing Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975)). D&Z held, as we’ve discussed many times:
A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.
423 U.S. at 4. And the Supreme Court has kept on saying this. Erie principles prohibit “federal judges” from “displac[ing] the state law that would ordinarily govern with their own rules.” Boyle v. United Technologies Corp., 487 U.S. 500, 517 (1988). “[A] federal court is not free to apply a different rule however desirable it may believe it to be, and even though it may think that the state Supreme Court may establish a different rule in some future litigation.” Hicks v. Feiock, 485 U.S. 624, 630 n.3 (1988).
But when updating the learned intermediary section of his treatise, Bexis came across a peculiar MDL holding, that because a defendant supposedly “cite[d] no cases” for the proposition “that the learned intermediary doctrine should apply to Plaintiffs’ . . . consumer protection claims” under the laws of California, Maryland, Illinois, and Florida, then “the learned intermediary doctrine should not apply” to claims brought by plaintiffs in any of these states. In re Natera Prenatal Testing Litigation, 664 F. Supp.3d 995, 1007-08 (N.D. Cal. 2023). The decision did not cite any precedent from any of these states (not even a trial court decision) affirmatively creating any exception to the learned intermediary rule for consumer fraud claims. Id.Continue Reading Debunking Another Stunningly Wrong MDL Expansion of Liability
As many of you no doubt already know, the federal judiciary’s Committee on Rules of Practice & Procedure gave its final approval to new Fed. R. Civ. P. 16.1, concerning MDL practice, on June 4. Here’s some commentary. We’ve also mentioned the proposed rule here on the Blog. Bexis went so far as to file an extensive comment on the proposed rule, primarily decrying the frequency with which MDL judges simply ignored the existing federal rules – most significantly (although hardly exclusively) those rules that act to weed out meritless claims in non-MDL situations.
Throughout the process that led to new Rule 16.1, the drafters consistently refused to impose any mandatory procedures at all for early vetting of the hordes of meritless to utterly frivolous claims that are routinely filed in mass tort MDLs. Thus, we bloggers were skeptical that all the effort to create a new, entirely voluntary list of potential MDL management tools was worth the candle. Indeed, new Rule 16.1 stands out like a sore thumb among the Federal Rules of Civil Procedure, precisely because it lacks any mandatory requirements. The new rule has lots of “shoulds” but practically no “shalls.” See Approved Committee Note and Text of Fed. R. Civ. P. 16.1.
Taking a closer look, we now believe that, if used according to its terms, new Rule 16.1 would actually be better than no rule at all, albeit not by a lot. MDL cases now comprise over 70% of the total federal caseload, so we still believe it is ludicrous that those cases are not subject to a single mandatory MDL-specific rule. But Rule 16.1 it is what it is.Continue Reading New Rule 16.1 – Better Than Nothing, But Not by a Lot
Last week we alluded to the utility of bench-bar conferences. As if to prove that point, we spent Thursday and Friday at a conference on Multidistrict Litigations. The conference was focused on the sources of, and possible solutions to, “protracted” MDL proceedings. John Rabiej put the conference together, and that pretty much guarantees that the
We have spilled a good deal of ink on the Valsartan MDL. The back-end of the blog says 18 posts (and counting) already reference Valsartan. Why so many? Because they usually are so bad. Today’s post is more of the same. Hence the deep sigh.
Today’s Valsartan opinion, In re Valsartan, Losartan, & Irbesartan Products
Depending on your age, today’s title may evoke images of Hayley Mills or Lindsay Lohan. We won’t ask you which. It can be your secret. But in an industry where remakes are rarely worth the price of admission, the Parent Trap is a rare exception, and we won’t fault you for liking both. Today’s parent
It is not uncommon that terms are used without knowledge of their origin and that the origin is instructive about the meaning or proper application of the term. We offer two examples. Many lawyers who at least dabble in product liability litigation have heard the term “Bradford Hill criteria.” Was it named after two different