Pennsylvania

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We’ve blogged a lot recently about preemption and the dismissal of complaints alleging that certain over the counter products, including acne medications, sunscreens, antiperspirants, expectorants, and shampoos contain benzene.  Almost a year ago we blogged about the dismissal of an OTC case involving medicated shampoo that allowed plaintiff leave to amend. Today’s decision, Pineda v. Lake Consumer Products, Inc., 2025 WL 2698991 (E.D. Pa. Sept. 22, 2025), is a mixed bag that addresses plaintiff’s amended complaint. It’s about coal-tar shampoos, which are known to include benzene and are subject to an FDA monograph that recognizes the naturally occurring presence of benzene in coal tar. Yet, shockingly, plaintiff filed a class action claiming she would not have purchased the shampoos had she known they contained benzene.Continue Reading OTC Preemption Letdown in the Eastern District of Pennsylvania

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Not long ago we discussed Somerlot v. Jung, ___ A.3d ___, 2025 WL 2157391 (Pa. Super. July 30, 2025), as providing a potential antidote to some Mallory-inspired forum shopping.  However, as we pointed out, Somerlot’s advantages were limited, because:  (1) they required the pro-active use of forum selection clauses in advance of any litigation, and (2) would only be available to defendants who had the sort of relationship (directly or through distributors or doctors) with a plaintiff that would provide the opportunity to require such a clause.  Thus, the Somerlot solution was not available to all, or even most, prescription medical product liability litigation.

However, over the last couple of months, Pennsylvania appellate decisions involving the more traditional concepts of forum non conveniens and venue have materially changed applicable law for the better, in terms of their availability as tools to combat post-Mallory forum shopping.  Since Pennsylvania remains the only large state to allow general jurisdiction by consent in prescription medical product liability litigation, Pennsylvania law remains by far the most important for dealing with post-Mallory forum shopping.Continue Reading Recent Pennsylvania Appellate Decisions Can Combat Post-Mallory Forum Shopping

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We expect that none of our readers need reminding about the disastrous Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), holding that Pennsylvania could constitutionally (under the Due Process Clause, at least) deem the mere act of registering to do business in Pennsylvania as “consent” that permits the Commonwealth’s courts to  assert general personal jurisdiction over foreign corporations without any other contact.

At this point, Pennsylvania remains the only state with a general jurisdiction consent-by-registration statute that reaches manufacturers of prescription medical products.  Illinois recently passed a more limited consent-by-registration statute, 735 Ill. Comp. Stat. 5/2-209(b)(5), 805 Ill. Comp. Stat. 5/13.20(b), that applies only to “hazardous substances,” so our primary focus for Mallory problems remains Pennsylvania.

There’s been a Pennsylvania legal development that could help some defendants prevent Mallory inspired forum shopping.  It’s a recent Pennsylvania state court medical malpractice venue decision – something that may fly under the radar for non-Pennsylvania, non-medmal defense counsel.  Of course, we at the blog live for bringing this kind of case to our defense colleagues’ attention (longtime readers may remember our early advocacy of what is now called “snap removal”).Continue Reading Recent Pennsylvania Decision Suggests Partial, Longer Term Response to Our Mallory Problem

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Our readership is tuned into current events and stays up to date on significant drug and device litigation.  We bet no one missed that Taylor and Travis are getting married, or that a college football game being hyped as the biggest regular season game in at least a decade (Texas v. Ohio St.) happens tomorrow.  We also bet that the blog’s readers know what GLP-1 inhibitors are—medications developed for diabetes and now widely prescribed for weight loss.  At least one poll estimated that 12% of the U.S. population has taken a GLP-1 medication.

About a year ago, we posted about the successful efforts of the defendants in the GLP-1 MDL to have the court, rather than permitting unfettered discovery at the outset, instead tee-up certain “cross-cutting” issues that would impact the scope of the MDL. Yesterday we posted about the MDL court’s ruling on preemption of the plaintiffs’ design defect claims. Today we address a separate decision addressing the admissibility of expert testimony on a cross-cutting issue.  In re Glucagon-Like Peptide-1 Receptor Agonists Prods. Liab. Litig., MDL No. 3094, 2025 WL 2396801 (E.D. Pa. Aug. 15, 2025).Continue Reading Trimming Down the GLP-1 MDL

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Back in 2020, we encountered Gustafson v. Springfield, Inc., 2020 Pa. Super. Lexis  843 (Pa. Super. Sept. 20, 2020), a decision so bizarre that it reminded us of a Monty Python movie.  That decision “employ[ed] a rationale, at once both paleolithically conservative and pro-plaintiffly radical, that would render any federal “tort reform” statute unconstitutional.”  Gustafson involved a federal statute that preempted most tort litigation involving firearms, the Protection of Lawful Commerce in Arms Act of 2005, 15 U.S.C. §§7901, et seq., (“PLCAA”), and declared that the PLCAA violated the Tenth Amendment.

Since it did not involve prescription medical product liability litigation, the Blog did not follow Gustafson all that closely – our last mention of it was in 2021, noting that en banc reargument had been granted and the singular panel opinion had been withdrawn.  However, the decision that resulted from the reargument was a mess.  Gustafson v. Springfield, Inc., 282 A.3d 739 (Pa. Super. 2022) (en banc), produced no majority and five different opinions from the nine judges.  Moreover, the overall result, which was to reverse the trial court’s dismissal of the suit, was contrary to the majority votes of the individual judges.  How could that be?  Here’s a brief description from a Pennsylvania appellate procedure article Bexis wrote about Gustafson:

The outcome in Gustafson thus differed dramatically from the votes of the nine en banc judges on the merits of the two issues.  The outcome was 5-4 in favor of reversal, as four judges would reverse on constitutional grounds, and one judge would reverse solely on statutory grounds.  On both of the two issues, however, the position advocated by the defendants was in the majority.  Seven justices agreed that, factually, the Arms Act was applicable to the Gustafson plaintiffs’ claims.  By a slimmer margin of 5-4, a majority of the Gustafson judges agreed that the Arms Act was constitutional.

J. Beck, “What Happens When Precedent Splinters? A Look at Gustafson,” Law.com (Nov. 17, 2022).

This bizarre result had one beneficial effect, it virtually forced the Pennsylvania Supreme Court to take the inevitable appeal in order to clean up the mess.  Which it did.  See Gustafson v. Springfield, Inc., 296 A.3d 560 (Pa. 2023) (granting review).

And last month, the Pennsylvania Supreme Court did indeed clean up the mess.  See Gustafson v. Springfield, Inc., 2025 Pa. Lexis 442 (Pa. March 31, 2025).Continue Reading At Least Pennsylvania Is Not That Completely Different

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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

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Blair v. Abbvie Inc., 2025 WL. 57198 (W.D. Pa. Jan. 9, 2025), is, from the defense perspective, a favorable opinion dismissing (some with prejudice, some with leave to amend) all counts of the plaintiff’s complaint.   The opinion is a bit odd, in a semi, unintentionally-ironic sort of way, because it faults the plaintiff for…

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Recently we discussed the latest opinion in the ongoing “controversy” over the application of Pennsylvania’s comment k across-the-board rule to cases involving medical devices.  Douglas v. Atrium Medical Corp., 2024 WL 4364950 (M.D. Pa. Sept. 20, 2024).  We use “controversy” advisedly, because as Douglas held, there is “no substantial ground for difference of opinion…

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This is from the non-Dechert part of the Blog.

Over the years, the Blog has had many, many posts related to the issue of whether Pennsylvania recognized any form of strict liability in product liability actions against prescription medical products.  In addition to the fact that several of the principal authors of the Blog have…

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Although today’s decision involves a medical product, it focuses on an online marketplace rather than a drug or device manufacturer. And by online marketplace we mean the delivery service that has become ubiquitous in almost all of our lives—Amazon.  The decision is significant because it finds Amazon, as a shipper rather than a seller, does not have an independent duty to investigate risks of the products it ships.Continue Reading Pennsylvania Federal Court Holds Online Marketplace Has No Duty to Inspect Goods

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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