Years ago we were often entertained by the comedic stylings of “Professor” Irwin Corey, “World’s Foremost Authority.” Authority in what? (Or so we imagine you asking.) Well, that’s the point. He was an authority on everything and nothing. His shtick was to amble on stage dressed in a collegiate gown and sneakers, and then hold forth on a variety of topics via double-talk, stream-of-consciousness, and abrupt, nonsensical topic changes. Here’s an odd (more…)

One of the interesting things about blogging is that a lot of people seem to consider us part of the “press” – whether that’s the “health” press or the “legal” press. As a result, we get sent a lot of unsolicited press releases, maybe a couple of dozen a week. Most of them are from various small medical-related companies announcing this or that medical advance. Since we’re lawyers, not doctors, (more…)

We read lots of cases. A few are flawless and a few have no redeeming features, but most have a little bad mixed with the good, or vice versa. We tend to be curmudgeonly, even though we are down a curmudgeon, and we will fuss about a flaw in a opinion that rules in favor of a drug or device maker. Aaron v. Wyeth, No. 2:07cv927, slip op. (W.D. Pa. Feb. 19, 2010), is such a case.

The facts are unfortunate: Randy Aaron was (more…)

We’re feeling uncharacteristically magnanimous after last night’s USA Olympic hockey victory, so we’ll cheerfully report on a recent pharma innovator-liability case from the True North. In Goodridge v Pfizer Canada Inc., 2010 ONSC 1095 (Feb. 18, 2010), the plaintiffs claimed injuries from off-label use of Neurontin and its generic version. We tip the cyber hat to Nick Mizell at Shook Hardy for bringing the case to our attention. http://www.shb.com/attorney_detail.aspx?id=515
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In an (unfortunately) not-for-publication opinion, the 9th Circuit affirmed a defense summary judgment in Carson v. Depuy Spine, Inc., No. 08-56698, slip op. (9th Cir. Feb. 16, 2010). There’s nothing particularly interesting about the affirmance as to the manufacturing defect claim. But what the court had to say about plaintiff’s allegations concerning off-label promotion is music to our ears. First, there’s nothing improper about off-label (more…)

This post is about un-preempted fraud on the FDA claims and how to approach them….

“Heresy!” We hear you shout. “There’s no such thing as an unpreempted fraud on the FDA claim – at least one not brought by DoJ on behalf of the FDA itself. You guys have said so yourselves, in your discussion of preemption and “embedded” fraud on the FDA allegations.”

Yes we did.

We continue to believe (more…)

We have no intention of wading into the treacherous (and heated) debate about Citizens United v. Federal Election Com’n, ___ S. Ct. ___, 2010 WL 183856, slip op.(U.S. Jan. 21, 2010), an early frontrunner for hot-button Supreme Court decision of the year, especially after President Obama’s State of the Union speech. We leave it to the general constitutionallawtypes to debate the pros and cons of the application of the First Amendment (more…)

Readers of this blog know that we have strong opinions about many issues. We like Twombly/Iqbal. We hate junk science. And we really, really like preemption.

On some issues, however, we don’t have strong views, such as most choice-of-law issues. There are some choice-of-law issues about which we care deeply – for example we heartily dislike principal place of business as a choice of law factor because it would (more…)

You might not want to read this post around mealtime. But it does offer food for thought on an old bete noire, negligence per se. Louie DePalma, a character in one of our all-time favorite sitcoms, Taxi, once hired a lawyer who advertised that if he lost a case, he’d “eat a bug”. That’s what happened in Gentry v The Hershey Co., et al., 2010 U.S. Dist. LEXIS 9278 (M.D. Tenn. Feb. 3, 2010). The Gentry case is a combination of CSI, Willy Wonka, and (more…)

Two of the cases on our medical device preemption scorecard have been:
Johnson v. Endovascular Technologies, Inc., 2008 WL 3139424 (Cal. Super. May 19, 2008). Express warranty and failure to test claims are preempted under Riegel. Allegations amounting to fraud on the FDA are preempted by Buckman. Plaintiff has appealed this case.

McGuan v. Endovascular Technologies, Inc., 2008 WL 3139418 (more…)