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’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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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…)

As we said last week, because it’s a Dechert case, we can’t comment directly on Clark v. Pfizer, Inc., 2010 WL 163583, slip op.(Pa. Super. Jan. 19, 2010). However, we were sufficiently inspired by what’s in the opinion that we thought this would be a good time to put in our two cents worth about one of the theories that theClark plaintiffs pursued: “fraud on the market.”

As defense lawyers, we want to (more…)

As we said last week, because it’s a Dechert case, we can’t comment directly on Clark v. Pfizer, Inc., 2010 WL 163583, slip op.(Pa. Super. Jan. 19, 2010). However, we were sufficiently inspired by what’s in the opinion that we thought this would be a good time to put in our two cents worth about one of the theories that theClark plaintiffs pursued: “fraud on the market.”

As defense lawyers, we want to (more…)

Last week’s decision in Carr v. Tillery, 2010 WL 92487 (7th Cir. Jan. 12, 2010), was not, strictly speaking, a product liability case. But it involves some key players in that field, and a very key location. And, truth be told, the case appeals to the voyeur within us.

The players are former partners in a plaintiff class action law firm that made a nice business out of hauling corporations (e.g., IBM, Pfizer, Xerox) into Madison (more…)

As long-time readers know, this blog was founded by a couple of guys who first got to know each other defending co-defendant manufacturers in the Orthopedic Bone Screw Mass Tort. That fact significantly colors what you read here. A lot of the issues that we harp on– off-label use, medical device preemption, fraud on the FDA, cross-jurisdictional class action tolling, broken device cases, expert testimony on issues of (FDA) law (that’s (more…)

Remember Gresham’s law? If you ever suffered through Econ 101 in college, chances are you do. That’s the proposition that “bad money drives out good.” More generally, what Gresham’s law is all about is that if there’s a choice between doing something the “good” way and doing the same thing by way of some “bad” shortcut, if the shortcut is allowed, everybody will go that way. “Good” (more…)

The New Yorker occasionally runs squibs called “There’ll Always Be an England”– little ditties highlighting charming English eccentricity, often involving gardening for some reason.

We’re thinking of posting entries called “There’ll Always Be Posner,” comments on opinions by Judge Posner, which typically are brilliant and snappily written, typically address jurisdictional issues that nobody (more…)

A recent case, Koger v. Synthes North America, Inc., 2009 WL 5110780 (D. Conn. 2009), underscores what should be a simple fact of life in product liability litigation involving orthopedic implants in particular, and implanted medical devices in general –plaintiffs shouldn’t expect to get anywhere with nothing more than a broken device.

That’s because the environment inside the human body is really hostile. (more…)