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…)

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…)

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…)