Photo of Bexis

As we discussed at length in this post, since the 1940s, the Pennsylvania Supreme Court and other courts applying Pennsylvania law have refused to subject prescription medical products to strict liability.  That is significant because, unlike (now) every other state in the country, since 1987 Pennsylvania precedent prohibited defendants from introducing evidence of their

Photo of Bexis

We generally keep our distance from medical cannabis/marijuana.  We’re not one of those blogs.  But if legal holdings of interest to us happens to involve cannabis, we will comment.  Thus, we bring you Schmidt v. Schmidt, Kirifides & Rassias, PC, ___ A.3d ___, 2023 WL 7502499 (Pa. Commw. Nov. 14, 2023), holding that

Photo of Bexis

In 1919, J. Edgar Hoover described Communism as a “conspiracy so vast” that it was impossible for the populace to comprehend it.  The Palmer Raids and the first Red Scare soon followed.

That phrase echoed in our minds when we first read In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2023 WL 1818922 (D.N.J. Feb. 8, 2023).  The Valsartan opinion was similarly mind-boggling in its scope.  It certified not one, not two − but four class actions:  one for economic loss, one for third-party payors (“TPPs”), and two for medical monitoring (“remedy” and “independent claim”).  Id. at *3.  Compare that to the state of class action precedent in product liability litigation not too long ago when we made this statement in 2007:

As far as we know, there has not been a single contested class action in product liability, personal injury litigation that’s been affirmed anywhere in the federal system in the decade since the Supreme Court put the kibosh on such things with its Ortiz and AmChem decisions.  That’s not limited to just pharmaceuticals, that’s every kind of product that’s made.

Four in a single MDL order?  These class certifications glommed together no less than 111 consumer and TPP subclasses.  Valsartan, 2023 WL 1818922, at *24.  These class certifications combined 428 different pharmaceutical products, produced and marketed by 28 separate defendants, with claims governed by the laws of 52 separate jurisdictions.  There’s no way on earth that common issues could predominate over individual ones, or that this morass could possibly be tried to a jury.Continue Reading An Abuse of Discretion So Vast….  Our Long-Delayed Critique of the Valsartan MDL Class Action Certifications

Photo of Bexis

Not too long ago we discussed post-remand Pennsylvania Supreme Court filings in the Mallory personal jurisdiction matter. After reviewing both sides’ filings, we observed: “[U]nless the Pennsylvania Supreme Court in Mallory were to act contrary to the positions of both sides, the DCC issue will be decided promptly, on this appeal.”

Well, that’s exactly what

Photo of Bexis

We closed our post on the terrible Supreme Court decision in Mallory v. Norfolk Southern Railway Co., 143 S. Ct. 2028 (2023), with this “stay tuned” message:

Finally, as all the Mallory opinions make clear, jurisdictional litigation in Mallory itself is not over.  The Pennsylvania Supreme Court’s interpretation of the Pennsylvania statute has not

Photo of Bexis

Beginning – at least − with the awful decision in Schrecengost v. Coloplast Corp., 425 F. Supp.3d 448, 465 (W.D. Pa. 2019) (discussed here), plaintiffs seeking to overturn the longstanding Pennsylvania (since the 1940s) prohibition against strict liability in prescription medical product liability litigation have been systematically attacking the precedential weight

Photo of Bexis

If Mallory v. Norfolk Southern Railway Co., slip op. (June 27, 2023), were a prescription medical product case, it would probably qualify as the worst judicial decision since the Blog was created – due to its potential scope.  Since it’s not, Wyeth v. Levine, 555 U.S. 555 (2009), retains that title.  But because it does not arise from what we do, Mallory is in certain ways worse.  Not only does it give free reign to all litigation tourism in Pennsylvania, but it opens the door to any other state potentially to do the same thing.Continue Reading Litigation Tourism Lives – Mallory Reversed

Photo of Bexis

Starting with our comprehensive post lambasting Schrecengost v. Coloplast Corp., 425 F. Supp.3d 448 (W.D. Pa. 2019), for ignoring 75 years of hitherto unbroken Pennsylvania precedent and allowing a “strict liability” design defect claim against an FDA-regulated prescription medical product, we have both chronicled and opposed the other side’s attempt to infiltrate strict liability into Pennsylvania litigation involving such products (primarily medical devices). That attempt disregards seven Pennsylvania Supreme Court decisions between 1948 (Henderson) and 2014 (Lance), as well as the Pennsylvania Superior Court (an intermediate appellate court in Pennsylvania) (Creazzo), all rejecting application of strict liability principles to prescription medical products.  For the gory details, see the prior post.Continue Reading Pennsylvania Law, Federal Rules, and FDA Standards