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…)

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…)

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…)

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…)

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…)

We’ve previously written about Allergan’s First Amendment challenge to the FDA’s regulations relating to off-label promotion (here(last of four parts), here, and here), but in the grand tradition of the First Amendment, the war of words is escalating, mud is being slung, and court filings are name-dropping Trojan priests – but more on that later.

The past month has been busy, with the government filing its “Motion (more…)

This just in: The Eighth Circuit has affirmed the Baycol MDL judge’s authority to enjoin the plaintiffs, after losing a class certification motion in the MDL, from running to a (presumably) friendly state-court judge to get the same class certified. Here’s a link to the opinion.

What happened is that one West Virginia law based consumer fraud (that is, economic losses only) class action was removed to federal court and became part of the (more…)

Plaintiffs usually allege thatdecisions regarding marketing, distributing and selling a drug or device – as well as interactions with the FDA – were made by the manufacturer at the corporate level. Of course, they argue that these corporate decisions then impacted the prescribers and plaintiffs at their home locales. As lawyers who defend mass torts, including putative class actions, we are used to litigating choice-of-law issues – and using the heavily (more…)

Defendants went two for two sending forum-shopping non-resident plaintiffs back where they came from in New York this week. First, the Second Circuit, in a summary order, toldbunch of Austrian plaintiffs from a ski train fire to take their lawsuits back across the Atlantic.Ferk v. Omniglow Corp., slip op. (2d Cir. Dec. 21, 2009). Austrians injured in an Austrian accident suing in the United States were not entitled to “very little deference” (more…)

It’s that time of year. Yeah, we know, it’s neither new nor original to do top ten lists – but it’s still fun. Except when it isn’t.

How much fun can it be to review all those times in the past year when we’ve been kicked in the teeth? That’s right. Here are our top (or should we say bottom) ten worst prescription drug/medical device decisions of 2009.

True, there are still a (more…)