Hardly a week goes by when we don’t blow a kiss or two at Twombly/Iqbal. Frankly, we can’t understand why everyone doesn’t share our enthusiasm. What’s wrong with requiring plausibility before subjecting someone to the monetary, stress, and reputational expenses of litigation? It’s enormously frustrating when courts express hostility to Twombly/Iqbal. Sometimes it’s even worse when courts pretend to follow Twombly/Iqbal but then apply them in such (more…)

Even though he’s retired – from blogging that is, not the practice of law – our blogger emeritus, Mark Herrmann, still finds ways to increase our audience here at Drug and Device law Blog. His beyond-the-grave piece on blogging, “Memoirs of a Blogger,” has just appeared in the ABA’s Litigation magazine. Credit has to be shared, however, with the ABA’s glacial publishing process, since Mark originally (more…)

Whether additional warnings would have made a difference to learned intermediary physicians was the issue to be decided in two appellate decisions handed down this week. On facts that weren’t all that much different – at least as far as the prescribers were concerned (hold that thought for later) – the courts came to diametrically different conclusions.

On the one hand, it was lights out for a Georgia plaintiff, (more…)

A longtime correspontent (who wishes to remain nameless – but we thank you anyway) sent along overnight a new medical device preemption win, Wheeler v. DePuy Spine, Inc., No. 06-21245, slip op. (S.D. Fla. March 9, 2010).

You know the drill. Class III PMA Device = preemption. The Charite Artificial Disc (a spinal implant) is that. So essentially the only thing left would be a “parallel violation” claim. Concerning a implied (more…)

The other day we learnedthat the U.S. Supreme Court will decide Vaccine Act preemption in Bruesewitz v. Wyeth. We’ll have plenty of time to obsess about the Bruesewitz case itself in the coming months, so today we’ll just use it as a convenientexcuse to get a couple of things out of the way.

Good-Bye Colacicco
Remember Colacicco v. Apotex? At one point it was all (more…)

Less than a month ago we posted about a good no-remand decision out of the Southern District of New York, where the court found that a fraudulent joinder could not defeat diversity jurisdiction. We went out of our way to contrast that SDNY decision with the usual doings in the Southern District of Illinois, where too many decisions applied tests that allowed plaintiffs to join local defendants who could never-ever be found liable. The invariable result (more…)

We see so many cases alleging “illegal” promotion of off-label use that when we find one where the plaintiffs don’t make that sort of allegation, it makes us sit up and take notice. That’s the case with Meharg v. I-Flow Corp., No. 1:08-cv-184-WTL-TAB, slip op. (S.D. Ind. March 1, 2010). It’s a pain pump case – the allegations being that these pumps, which are used after shoulder surgery, (more…)

Last week we threw up a quickie post about the preemption – or more properly no-preemption decision in Mason v. SmithKline Beecham Corp., 2010 WL 605922, slip op. (7th Cir. Feb. 23, 2010). We promised you our thoughts when we’d had a chance to read it thoroughly. We’ve had that chance, but there’s still not a lot to say. That’s because the Mason opinion is almost totally bereft of legal analysis of the preemption issue. It’s (more…)