Last Friday, the U.S. Court of Appeals for the Federal Circuit affirmed the second of the three defense verdicts in the test cases alleging that the measles-mumps-rubella vaccine causes autism. Cedillo v. Secretary, HHS, No. 2010-5004, slip op. (Fed. Cir. Aug. 27, 2010). Although the Cedillo decision turns on the specific facts of the case and does not contain an across-the-board rejection of the vaccines-cause-autism theory, Cedillo adds to the Read the rest of this entry »

We say it often: tragic facts lead to bad law. And the case we ranked #4 on our list of worst drug/device decisions of 2009 was definitely a case of tragic facts (and, as you can guess, we didn’t like the law too much). In that case, an infant who was born with Down Syndrome and a combination of heart defects went to a children’s hospital in Delaware, where the infant underwent a procedure that included the implantation of a stent (this stent Read the rest of this entry »

Don’t get us wrong. We’re delighted to practice drug-and-device law. It’s an important, interesting, and dynamic field, and we’d never think of abandoning it. At cocktail parties people gather around and chat with us about the latest mass tort. (We hang out with a nerdy crowd.) By contrast, the ERISA, tax, and structured finance lawyers linger in the corners alone, staring glumly into their chardonnay.

And yet, law school geared us up for Read the rest of this entry »

We say it often: tragic facts lead to bad law. And the case we ranked #4 on our list of worst drug/device decisions of 2009 was definitely a case of tragic facts (and, as you can guess, we didn’t like the law too much). In that case, an infant who was born with Down Syndrome and a combination of heart defects went to a children’s hospital in Delaware, where the infant underwent a procedure that included the implantation of a stent (this stent Read the rest of this entry »

In the last month, we’ve seen two more appellate decisions definitively rejecting the idea of some sort of separate cause of action – apart from warning or design defect – for “failure to test,” whatever that might be. In the drug area, as we reported before, the Pennsylvania Superior Court thoroughly killed the concept in Lance v. Wyeth:
[Plaintiff] also maintains that her alleged her causes of action, Read the rest of this entry »

With a lot of you on the way out the door for Labor Day, here are a couple of new (at least to us) cases, that while not important enough to merit lengthy discussion, which contain something interesting (to us defense drug and device lawyers,that is).

Cheatham v. Teva Pharmaceuticals, 2010 U.S. Dist. Lexis 90587 (E.D. Ark. May 20, 2010). The plaintiff sued a new defendant we’ve never seen before – a publisher of those drug information Read the rest of this entry »

Judge Posner’s opinions are usually right and, even more usually, brilliant. It’s no surprise we’ve blogged about them so often. (For example, here, here, and here.) We could probably count the posts, but we’ll go with the “one, two, and many” formulation and acknowledge that today is the “many-th” time we’ve addressed a fan letter to Chicago. On Friday, we briefly posted on the case of Robinson v. McNeil Consumer Healthcare, No. 09-4011, Slip Op. Read the rest of this entry »

The off label issue surfaces often in drug-and-device litigation, even where it should remain wholly submerged. Plaintiffs view off-label promotion as a way of altering the risk-benefit calculation, undermining preemption, and, of course, parading “bad conduct” in front of the jury. Strangely, the off-label attack occasionally is brought in cases where the plaintiff’s use was on-label — though judges are starting to shut that sort of thing down, Read the rest of this entry »

In the last month, we’ve seen two more appellate decisions definitively rejecting the idea of some sort of separate cause of action – apart from warning or design defect – for “failure to test,” whatever that might be. In the drug area, as we reported before, the Pennsylvania Superior Court thoroughly killed the concept in Lance v. Wyeth:
[Plaintiff] also maintains that her alleged her causes of action, Read the rest of this entry »

With a lot of you on the way out the door for Labor Day, here are a couple of new (at least to us) cases, that while not important enough to merit lengthy discussion, which contain something interesting (to us defense drug and device lawyers,that is).

Cheatham v. Teva Pharmaceuticals, 2010 U.S. Dist. Lexis 90587 (E.D. Ark. May 20, 2010). The plaintiff sued a new defendant we’ve never seen before – a publisher of those drug information Read the rest of this entry »