Sometimes it can be easy to believe that a random thought can conjure a real-life response. Such as when you imagine yourself taking a vacation to someplace warm and tropical (not at all brought on by mid-January temps in the Mid-Atlantic) and suddenly every other commercial you see has a palm tree, a hammock, and
Long ago, when we first started representing the makers of prescription pharmaceuticals, it was said that people did not tend to sue over life-saving medications. Contraceptives, pain medications, obesity medications, diabetes medications, psychiatric medications, and many others were fair game, even if the risk-benefit calculus for an individual patient might involve major benefits on one
Typically, medical malpractice cases are one-offs. A plaintiff may sue her doctor and/or hospital for failing to diagnose a condition or treating it in a suboptimal way. They tend to be highly fact-dependent even if the general subject, like post-operative infection, comes up fairly often within the world of med mal cases. In individual cases,
We had been waiting for the Utah Supreme Court’s decision in Burningham v. Wright Medical for some time. As we pointed out in a blogpost when Burningham was first certified by the district court (Utah is one of the few courts allowing district court certification), over a year ago, “[p]ractically no court has . .
We’ve been posting about this case since 2016 when the district court first dismissed plaintiff’s failure to warn claim as preempted on the grounds that there was clear evidence the FDA would have rejected the warning plaintiff sought. We celebrated again in 2017 when the Tenth Circuit affirmed that decision. Since then we’ve been
We’ve explained at length why Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), is an anachronism with respect to preemption, given the complete overhaul that Congress gave to §510(k). Still, strange things happen when preemption meets product liability, and there seems to be a conspiracy of silence among judges with respect to current FDA
Last weekend we returned to Utah, one of the most beautiful states in the USA. Over the years we had taken in the polite delights of Salt Lake City, the powderpuff snow of Park City, and the cinematic enthusiasms of the Sundance Festival. This time was different. It was an occasion to explore Zion National
Strict liability is not the same as absolute liability. We learned that truth in law school, but too many plaintiff lawyers and judges seem to have unlearned it along the way. The key separator between strict liability and absolute liability is comment k to section 402A of the Restatement (Second) of Torts (1965), which observes
One of the wonders of parenthood is its ability to deliver interludes so sublime in their exquisite simplicity that they provoke smiles long after they end. Such was an evening last week when we journeyed to New York to celebrate the birthday of the Drug and Device Law Rock Climber, now a waxing college senior
A funny thing happened on the way to a defense verdict last year—after the jury decided that the defendant’s product was not defective, the MDL judge told the jurors that perhaps they did not “fully understand” and instructed them to try again. So the jury went back into the jury room, and having been duly