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We observed oral argument the other day in a case that could have a significant impact on potential liability under California tort law for pharma companies and all other innovators.  In Gilead v. Superior Court, No. A165558 (Cal. Ct. App. First Dist.), a panel of the California Court of Appeal is considering whether a

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The idea that software can be a product (as in “product liability”) is not new, but gray areas remain with regard to when that should be and how courts should handle it.  Take for example a case that we wrote on a couple of years ago, in which a district judge in Virginia granted summary judgment for the manufacturer of an electronic health records (“EHR”) system.  A patient suffered severe complications after a doctor entered post-op instructions into the hospital’s EHR computer system, but the hospital implemented the orders at the wrong time.  Whose fault was that?  We don’t know, but the district court ruled that, even though the patient’s experts identified software changes that would have made the system safer, they did not identify a standard of care that the EHR system failed to meet. 

Well, a couple of weeks ago, the Fourth Circuit reversed and held that the experts had very well identified a standard of care and further that there was evidence sufficient to support a failure-to-warn claim.  The case is Lowe v. Cerner Corp., No. 20-2270, 2022 WL 17269066 (4th Cir. Nov. 29, 2022), and the facts are worth repeating.  Following surgery, the patient’s surgeon entered orders for “continuous pulse oximetry” into the EHR software developed by the defendant and deployed by the hospital.  However, although the surgeon intended for pulse oximetry—i.e., checking blood oxygen—to be continuous, she chose “once” and “daily” from the system’s dropdown menus, which defaulted to 10:00 each day.  The system correctly displayed that time on the order confirmation screen, but several orders were entered that day, and the surgeon did not scroll down to review them all.  She clicked through some version of “accept all.”  Unfortunately, checking blood oxygen at 10:00 was too late for this poor patient, who suffered severe and permanent disability.  Id. at *2-*3. Continue Reading Yes Virginia, Software Can Be A Product

Photo of Eric Alexander

In the movie Thank You for Smoking, lobbyists for the tobacco, alcohol, and firearm industries got together periodically at a DC watering hole to swap stories about the challenges of representing unpopular clients under increasing scrutiny by the federal government.  Hilarity ensued, along with some other stuff we do not remember very well.  Of course,

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The United States Supreme Court in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), determined that “off-label usage” is “accepted and necessary” by both the FDA and the medical community.  Id. at 350.  Thus, “[p]hysicians may prescribe drugs and devices for off-label uses.”  Id. at 351 n.5 (citation and quotation marks omitted). 

Photo of Steven Boranian

No good deed goes unpunished.  One of our very first cases was a pro bono case for the Red Cross following a Northern California earthquake.  The Red Cross gave a local homeowner money to repair her home.  It was a gift.  No strings attached.  Please, take our money and fix your house.  Live long and

Photo of Eric Alexander

A long time ago in a law school relatively far away, we took torts as a first year law student.  Many of the cases about which we learned (or were supposed to have learned) were from even longer ago and we had no idea how much some of those old cases would inform our practice. 

Photo of Rachel B. Weil

Like many of you, we spend a large portion of our professional life litigating cases consolidated in MDLs.  MDLs serve a purpose in this “mass tort” world, but they also breed laziness and complacency among plaintiff lawyers who amass “inventories” of clients they’ve never met and about whose claims they know nothing in the hope

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We typically steer clear of discussing any opioid cases for client reasons. But today we have a case that did not involve our client in any way and that involves a discrete and important issue. Accordingly, we hereby render a bare-bones report.

The case, Floyd v. Feygin, et al., No. 507458/17 (Kings County, N.Y.