This post comes from only the Dechert side of the blog, as Reed Smith is involved in this litigation.

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The New Jersey NuvaRing litigation, which involves a combination hormonal contraceptive, recently produced an opinion that granted the defense summary judgment in seven separate cases.  That’s a pretty big win for the defense.  But a broader win can be found in the reasoning of the court.  The defense didn’t win on one overarching argument.  It won for a variety of reasons.

Failure to Warn

Two of the seven cases were dismissed because the court found that the NuvaRing label’s warning on venous thromboembolism (VTE), the alleged side effect, was adequate as a matter of law.  The plaintiffs in these two particular cases were New Jersey residents, and so the court applied the New Jersey Product Liability Act (PLA).  The PLA contains a presumption for adequacy of any FDA-approved warning:

If the warning or instruction given in connection with a drug or device or food or food additive has been approved or prescribed by the federal Food and Drug Administration . . . a rebuttable presumption shall arise that the warning or instruction is inadequate.

Slip Op. at 31 (citing NJSA §2A:58C-4).  New Jersey caselaw has established two types of evidence that can rebut this statutory presumption, both relate to post-approval actions by the defendant: (1) evidence that the defendant deliberately concealed or failed to disclose after-acquired knowledge of harmful effects of the drug (the Perez exception), or (2) evidence that the manufacturer engaged in an economically-driven manipulation of the post-market regulatory process (the McDarby exception).  Id.

Continue Reading The New Jersey NuvaRing Litigation Summary Judgment Decision

Reed Smith won two separate decisions in New Jersey yesterday. One of them, In re NuvaRing Litigation, No. Ber-L-3081-09, slip op. (N.J. Super. L.D. April 19, 2013), we’re not at liberty to discuss, but if you’re on our side, you won’t be disappointed reading it – in all its 91-page splendor.

The other, decision,

We recently took an ivory tower tour to see what academics were saying about Twombly/Iqbal. Not surprisingly, we found more disapproval than approval, and more complexity than clarity. One law review article, Effron, “The Plaintiff Neutrality Principle: Pleading Complex Litigation in the Era of Twombly and Iqbal,” 51 Wm & Mary L. Rev. 1997 (2010) (hereinafter “Effron“), quotes us on the applicability of Twombly/Iqbal to MDL master complaints.

First, thanks for noticing, Professor. We’re glad to see folks in the academy pay some attention to what actual practitioners think about the prominent legal issues of the day. Second, while we find parts of the article to be closely-reasoned and creative, we think the idea of narrowing Twombly/Iqbal to make the plausibility requirement more palatable is like saying half a loaf is better than none. Right now, we still think we’re entitled to the whole loaf.

Let’s start with the title of the article, focusing on that “Neutrality” word. Our business is advocacy. From where we stand, there isn’t much neutrality in sight. We argue for our client’s positions and cite to “neutral” principles when they are helpful and convenient. Plaintiff lawyers do likewise. Why? Courts necessarily say they like neutrality. When we were in law school in the Pleistocene era (well before the “Era of Twombly and Iqbal“), we were compelled to read a lecture by Columbia law professor Herbert Wechsler titled “Toward Neutral Principles of Constitutional Law.” It’s been a long time since we thought about that lecture.

Neutrality is a tool that takes one only so far. Kant and Rawls built entire philosophies around the concept of neutrality. What’s the categorical imperative but a mental exercise where you pretend you might be any random member of society before deciding how you’d like a certain set of arrangements? But it’s a strange, counterfactual mind-game, and it seems oblivious to huge chunks of human experience. Rawls’s Theory of Justice pretends people aren’t the passionate, risk-taking bundles of neurons they really are. The only time we’ve found the neutrality principle to work is when we’ve told our kids that one cuts the pie then the other chooses. We’ve found more wisdom in the philosophy of Thomas Hobbes, not just because “solitary, poor, nasty, brutish, and short” perfectly described our junior prom date, but because he said that “Reason scouts and spies for the passions.”

We’re not neutral when we litigate cases. Plaintiff lawyers aren’t neutral. Sad to say, but most judges don’t come across as neutral. If they don’t favor a side, they often seem to favor docket control, or passing frail cases along to juries so as to avoid tough decisions. Maybe gatekeeping should be neutral, but gatekeeping is hard work.

Continue Reading We’re Not Neutral on Twombly/Iqbal

We fight with plaintiff lawyers all the time. Some mornings we roll out of bed and immediately start swinging. So we love it when plaintiff lawyers decide to mix it up with us, grab a pen (or keyboard), and write rejoinders to our blog posts. Recently, Nuvaring plaintiff lawyers wrote an article in Product Liability

What is going on in Nuvaring? Defendant first moved against Plaintiffs’ “master” complaint. Plaintiffs withdrew it. Then it moved against Plaintiffs’ individual complaints (all 200+ of them). Now the court won’t hear those either. No wonder our eyebrows go up a little more with each ruling. (Here, here, and here). At

Hah!

Two months ago, we raised an electronic eyebrow when we stumbled across In Re NuvaRing Prods. Liab. Litig., slip op., No. 4:08MD1964 RWS (E.D. Mo. Aug. 6, 2009). There, after the MDL Panel created a coordinated proceeding in Missouri for all of the NuvaRing cases, Judge Sippel ordered the plaintiffs to file a master

Earlier this week, we posted about how the MDL court in the Nuvaring litigation denied outright a defense motion to dismiss on the entirely procedural ground that the master complaint was an “administrative tool” and not intended for motion practice under Fed. R. Civ. P. 12. In re Nuvaring Products Liability Litigation, 2009 WL

Suppose you have a product liability MDL.

Individual lawsuits are arriving by the mailbagful.

You need a system to sort out which claims can proceed and which should be dismissed as a matter of law. What’s a judge to do?

On the one hand, you could order defendants to file motions to dismiss each of