Our last preemption-related post was more than three weeks ago, on July 2. Can you believe it? What ever happened to “all preemption, all the time,” as we used to be called?

The Supreme Court decided all of its pending cases, that’s what. Device preemption is pretty much settled, unless Congress upsets the applecart. Drug preemption is in a bit of a hiatus as appellate courts digest Levine and have yet to rule (more…)

We don’t deal with FDA regulatory matters that often, and with the criminal side even less, but the recent decision out of Colorado in U.S. v. Bader, slip opinion here, was too juicy to ignore.

It points out a serious flaw in the FDA’s regulatory scheme that we think needs a formal regulatory fix – and soon.

The issue in Bader is the limits on pharmacy compounding.

In Bader a pharmacist (more…)

Plaintiffs say that Pfizer’s anti-epileptic drug, Neurontin, causes people to commit suicide.

We say that it makes you scratch your head.

The first Neurontin-suicide case went to trial earlier this week. It sounded like a tough case for plaintiff: The decedent, who had taken Neurontin and then committed suicide, had a history of mental health disorders and abusing drugs, including cocaine. (Here’s a link to a Bloomberg story (more…)

We’ve published a couple of posts recently (here and here) about removal in the tough context — where the medical malpractice and product liability claims arise out of the same medical treatment. In that situation, the removing product manufacturer must convince the federal court to sever (and remand) the malpractice claims, and to retain jurisdiction over the product liability claims, even though evidence introduced at the malpractice and products (more…)

Since the Supreme Court handed down Philip Morris USA v. Williams, 549 U.S. 346 (2007), we’ve posted twice – here and here – that we think Williams’ reaffirmation, in the specific context of punitive damages, of defendants’ rights to maintain all available legal defenses sounds the death knell for punitive damages class actions.

And not just in the blogosphere. One of us took this constitutional (more…)

We’re kicking back today and letting others do the work for us.

Generally, practitioners don’t read the law reviews. So we’re skimming the tables of contents for you.

Today’s post simply describes four recent scholarly articles — two on preemption, one on post-sale duties to warn, and one theorizing about how tort law should be coordinated with non-tort regulatory standards — that may tickle your fancy.

If none (more…)

Remember “Dr. Strangelove”?

“Ripper: Have you ever heard of a thing called fluoridation. Fluoridation of water?

Mandrake: Uh? Yes, I-I have heard of that, Jack, yes. Yes.

Ripper: Well, do you know what it is?

Mandrake: No, no I don’t know what it is, no.

Ripper: Do you realize that fluoridation is the most monstrously conceived and dangerous Communist plot we have ever had to face?”

(more…)

The two of us have been practicing law now for a little over 25 years. Bexis graduated law school in 1982 and Herrmann a year later (see our bios – links at the top – for the gory details). At big firms it takes a few years – five at least – before we could start to have any real strategic impact on the cases we were working on. And it took a few years for us to get around to being product liability defense lawyers in the first place.
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Yes, Virginia, the FDA’s regulations requiring redaction of physician identifying information from Adverse Drug Event (”ADE”) reports are mandatory – even if plaintiffs obtain them … well … irregularly.

That’s the lesson of a brand new discovery decision in In Re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation, 4:08-MD-2004, slip op. (M.D. Ga. July 10, 2009), decided earlier today.

Here’s (more…)

Last year, the MDL Panel denied an attempt to centralize all of the federal “shoulder pain pump – chondrolysis” cases. See In re Shoulder Pain Pump – Chondrolysis Products Liability Litigation, MDL No. 1966 (JPML Aug. 11, 2008) (link here). So the cases have moved ahead individually in federal courts across America.

A couple of weeks ago, a defendant got good news in one of those cases. In Kilpatrick v. Breg,Inc., No. 08-10052-CIV-MOORE/SIMONTON, (more…)