Our work on “hard goods” (automobile, appliance, fire) product liability cases is greatly outnumbered by our drug and device cases (and probably also outnumbered these days by website privacy cases). But the history of product liability has often been driven by such hard goods cases. Think of Cardozo’s famous opinion in MacPherson v. Buick.
West Virginia
District Court Misapplies Implied Preemption In Medication Abortion Case
Since before the Dobbs decision reversed decades of precedent on reproductive rights, we have been looking at the implications for drug and device manufacturers. See here and here. Our posts have, of course, followed the ins and outs of the notorious AHM (or Hippo) litigation as it makes its way up to the…
Guest Post – More on Expert Gatekeeping in West Virginia
Shortly after we recently posted our 50-state survey of state law concerning expert “gatekeeping,” we received a thoughtful email from friend-of-the-Blog Tom Hurney, of Jackson Kelly, informing us that there were additional gatekeeping-related issues in West Virginia that our search – limited to cases using the word “gatekeeping” – did not reflect. His…
Mifepristone Manufacturer Wins First Round in West Virginia
Over the past few months, Bexis, with the substantial help of several Reed Smith associates, has prepared a law review article – “Federal Preemption and the Post- Dobbs Reproductive Freedom Frontier” – which will soon be published in the Food & Drug Law Journal. A draft of this article is now available on SSRN.
The core premise of Bexis’ article is very simple: Once the FDA has said “yes” and approved a particular drug for a particular indication (“intended use”) for sale in the United States, federal preemption precludes any state from saying “no” and trying to ban that same FDA-approved drug. It doesn’t matter whether that drug is morphine, methadone, minoxidil – or mifepristone.Continue Reading Mifepristone Manufacturer Wins First Round in West Virginia
Alternative Design Issue Certified to West Virginia High Court
Quick – when’s the last time that a federal court of appeals certified a pro-plaintiff ruling to the relevant state supreme court?
We don’t remember either.Continue Reading Alternative Design Issue Certified to West Virginia High Court
One Step Closer To Having Unanimity On The Learned Intermediary Doctrine
For much of the sixteen and a half years of this Blog, we have been tracking the acceptance and rejection of the learned intermediary doctrine. The first year that we compiled a worst decisions of the year list it was topped by a case that still holds the title for worst, most thinly veiled legislation…
Fourth Circuit Upholds Restrictions on Plaintiff Lawyer Advertising in West Virginia
We want to start by emphasizing the word restrictions. The law at issue in West Virginia was not a ban on plaintiff lawyer advertising, nor could it be. Since Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the First Amendment’s protection of truthful and non-misleading commercial speech extends to lawyers. Lawyers,…
Revisiting a Classic
When we first looked at the decision for today’s post, we thought about comparing it to fan fiction. If you aren’t familiar with the term it is fiction stories written about characters from an original work of fiction created by fans of the original work as opposed to its creator. Pretty straightforward in concept. But…
Guest Post – Don’t Come to West Virginia Without Your Expert
This guest post is by Tom Hurney at Jackson Kelly, a genuine West Virginia lawyer who leaped at the opportunity to write about a recent favorable decision of his home state’s highest court and to give you a taste of what West Virginia is like. We were happy to oblige. So here’s a discussion…
Breaking News – West Virginia Rejects Innovator Liability
While the entire blogging team (RS, at least) was traveling home by planes, trains and automobiles from the DRI’s annual Drug and Medical Device conference, the West Virginia Supreme Court of Appeals – yes, the same court that rejected the learned intermediary rule little more than a decade ago – issued its blockbuster opinion today…