If you are even a casual reader of this blog, you have probably come upon a post disparaging the rulings coming out of the In re BHR Hip Implant Products Liability Litigation. That court’s PMA preemption opinion made our worst decision list for 2018. It rendered an abysmal decision finding that failure-to-report claims
Ever since our Bone Screw days, when we used the strategy to great effect, we’ve rooted for defendants undertaking to beat post-MDL remand plaintiffs in guerrilla litigation in numerous courts across the country. The way to do it is twofold: On the one hand the defendant creates litigation uncertainty by hemming the other side in
Only five days after our recent post highlighting the possible no-private-right-of-action implications of the (to us, anyway) obscure Astra USA, Inc. v. Santa Clara County, California, 563 U.S. 110 (2011), case, the Fourth Circuit applied it along the lines we had speculated could be helpful to defendants. Bauer v. Elrich, ___ F.4th ___,
We’re not surprised by the preemption ruling in In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation, 2021 U.S. Dist. Lexis 100041 (D. Md. May 17, 2021), but that doesn’t makes us any less appalled.
First, here’s what happened.
This latest Birmingham Hip ruling was in preparation for
Today’s post discusses a recent implied-preemption decision that is relevant beyond the generic-drug context in which it arose.
A bit of background first.
In Buckman Company v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), the Supreme Court held that 21 U.S.C. § 337(a)—which declares that all actions to enforce the FDCA “shall be by
We praised Brooks v. Mentor Worldwide, LLC, 2019 WL 4628264 (D. Kan. Sept. 23, 2019), when it was first decided, as “checking all the boxes.” Last week the Tenth Circuit affirmed, and believe us, it rechecked all those boxes.
In Brooks v. Mentor Worldwide LLC, ___ F.3d ___, 2021 WL 245246
It’s a unique relationship based largely on knowledge and trust. Doctor’s not only have to rely on their medical knowledge, but they need to apply that to their knowledge of the patient. Knowledge that often develops overtime through trust. Patients want and need to be able to trust their doctors. Sometimes patients share information with
There was a time when we posted frequently about attempts to impose liability for injuries allegedly caused by the use of a generic prescription drug. Much of the attention has been directed to trying to pin liability on the company that developed the drug originally, even when the plaintiff took another company’s generic version. When
Back during the Orthopedic Bone Screw mass tort litigation, one of major avenues of attack on the plaintiffs’ novel claims was to pursue every state-law avenue for rejecting the assertion of negligence per se predicated on supposed violations of the Food, Drug & Cosmetic Act (“FDCA”). That approach originally led us to 21 U.S.C. §337(a),
We’ve mentioned before that negligence per se requires a claimed violation of a definite enactment – like a 70 mile per hour speed limit – that can substitute for the ordinary negligence “reasonable man” standard. However, we’ve never really studied it closely. Because negligence per se seems to be flowing rather than ebbing in prescription