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One of the decisions we were looking forward to at the end of 2022 has occurred. In In re Zofran (Ondansetron) Products Liability Litigation, ___ F.4th ___, 2023 WL 128570 (1st Cir. Jan. 9, 2023), the court unanimously affirmed the MDL-wide preemption order dismissing all claims.  Since the history of the Zofran litigation is well covered in our prior posts, we’ll stick to the First Circuit’s preemption rationale here.

Continue Reading MDL-Wide Preemption Win in Zofran Affirmed

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We’re old enough that we remember the pre-Daubert Bendectin litigation.  Bendectin was the only FDA-approved drug indicated for nausea and vomiting from pregnancy.  Yellow journalism (the National Enquirer) and scientific fraud (deliberately falsified scientific data) fanned a birth defect scare, which led to an avalanche of factually baseless litigation – Daubert was

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Not too long ago, our search keyed to Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (2019), picked up the following article in Trial Magazine:  Abaray & Harman, “Navigating Preemption After Merck,” 56 Trial 20 (Jan. 2020).  For anybody who doesn’t know, Trial is the house organ of the American

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Recently, Bexis was contacted by a reporter who had read the blog’s post on ghostwriting.  Bexis explained that people at the top of any profession – medical, legal, engineering, whatever – have more reasons opportunities to publish than they could possibly have time to write from scratch on their own.  Judges have law clerks,

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As we discussed at the time, the MDL-wide innovator liability appeals in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), resulted in rulings under more than 20 states’ laws that branded drug manufacturers could not be liable for injuries suffered by plaintiffs who never used their

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Over the years we have completed many written evaluations of young associates, and the first category on the form has almost always been “Legal Analysis.” That primacy makes sense. If a lawyer does not understand the legal issues, what good is oral or written expression, teamwork, or pretty much anything else? (That being said, it is amazing how business development can cure any perceived weakness of analytical ability). When we do what we usually do on this blog, scrutinizing judicial opinions, we are basically doing a legal analysis of a legal analysis. According to most dictionaries, to analyze something is to separate it into constituent parts. The word “analyze” comes from Greek words “ana” and “lupin” – to unloosen. Analysis picks things apart while synthesis puts things together.

Today’s case, In re Zofran Products Liability Litigation, 2016 U.S. Dist. LEXIS 59296 (D. Mass. May 4, 2016), is a nice piece of legal analysis. The court takes a messy case, separates the issues, sequences them logically, and then disposes of each part clearly and succinctly. The case was messy because the plaintiff lawyers made it so, by consolidating claims of four different plaintiffs from four different states: Missouri, Delaware, North Carolina, and Pennsylvania. The case was initially filed in Missouri state court. The defendant removed the case to Missouri federal court, and the case was then transferred to the MDL federal court in Massachusetts. The plaintiff moved to remand the case to state court and the defendant moved to dismiss the claims of the three non-Missouri plaintiffs.

Continue Reading Zofran MDL Jurisdictional Analysis Bounces Non-Missouri Plaintiffs