Many plaintiffs’ counsel prefer to litigate cases in state court.

(Film at 11!)

Thus, to avoid having product liability cases removed to federal court on the basis of diversity jurisdiction, plaintiffs sometimes include in their complaints medical malpractice claims against treating physicians. The plaintiffs and their treaters are often from the same state, which means there’s no diversity of citizenship and no opportunity (more…)

The other day we – allegedly belatedly – posted about the Supreme Court’s decision in Ashcroft v. Iqbal, 2009 WL 1361536 (U.S. May 18, 2009). We say “allegedly” because, whilst Herrmann can blame being out of pocket if he wants, Bexis (although likewise at ALI) doesn’t rely upon that excuse. He believed allalong that the prohibition of “anything goes” pleading in Bell Atlantic Corp. (more…)

Companies that provide medical malpractice insurance tend to be pretty large and pretty sophisticated.

It’s thus not surprising that the way they handle most of their business makes a lot of sense to us: They hire lawyers on a “wholesale” basis, asking law firms to defend a high volume of medical malpractice litigation for relatively low rates. The insurers win some cases and lose others, but, overall, the companies presumably maximize (more…)

Since we blogged last week about the American Law Institute’s (“ALI”) imminent final consideration of the Principles project on Aggregate Litigation (“PLAL”) – that is to say, class actions and similar proceedings – we thought we owed our readers a report on how it turned out.

All three of the motions we discussed: about predominance/issue classes, medical monitoring, and choice of law, were sufficiently (more…)

Who’d a thunk it? People write scholarly articles about the ethics of legal blogging!

(We probably should have thought about that before we started this gig, huh?)

Anyway, Rachel Lee’s student note in the most recent Stanford Law Review is titled “Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era.” (In the printed edition, it’s at 61 Stan. L. Rev. 1535 (2009). Ms. Lee frets that lawyers representing (more…)

We’ve already commented on what a bad idea the pending NY bill to abolish the learned intermediary rule is. Of course every defense lawyer who frequents this site already knows that, but if anybody out there needs persuading, here’s some more information.

Or you can just go read the package insert for just about any prescription drug out there (just Google “package insert”), and think about what the average joe who needs a prescription (more…)

Supposedly, Einstein said that, “insanity is doing the same thing over and over again and expecting different results.”

If that’s the case, then these marketing-based class actions seeking refunds of the purchase price (or some fraction of it) for prescription drugs are at the Einsteinian extreme. As we’ve mentioned before, class certification in these sorts of cases has been denied again, and again, and again. We could add a lot (more…)

In Heisner v. Genzyme, No. 08-C-593, 2009 U.S. Dist. LEXIS 37322 (N.D. Ill. Apr. 30, 2009), Heisner allegedly died as a result of an allergic reaction to Seprafilm, an anti-adhesive surgical barrier implanted in her body during a surgery. Seprafilm is a Class III medical device approved by the FDA through the premarket approval process.

Heisner’s surviving spouse and estate filed the usual product liability claims against Genzyme, which (more…)

As members of the American Law Institute (“ALI”) we’ve been closely following the evolution of the Institute’s Principles project on Aggregate Litigation (“PLAL”) – read: class actions – ever since we joined. In prior posts we’ve found plenty about which we were critical. See here, here, here, and here. But for our part we’ve never given up. We’ve kept attending meetings, asking questions, (more…)

Judge Jack Weinstein is ordinarily pretty lenient when it comes to whether expert witnesses satisfy the Daubert standards for testifying.

Yesterday, however, he excluded an expert in the Zyprexa MDL on Daubert grounds.

(Don’t get us wrong here. Judge Weinstein also denied motions to exclude two experts yesterday. But we’re choosing to focus on the rarer bird — the exclusion.)

In In re Zyprexa Prods. (more…)