One side effect of the Judicial Panel on Multidistrict Litigation’s refusal to make the pain pump cases an MDL is that many different courts are ruling on the inadequacy of the pain pump complaints. The Western District of Pennsylvania took its turn last week in Kester v. Zimmer Holdings, Inc., 2010 U.S. Dist. LEXIS 59869 (W.D. Pa. June 16, 2010). The opinion contains a few useful rulings.

1. It is a commonplace that a defendant (more…)

This post is largely about drug and medical device litigation “inside baseball.” Some of it’s going to be really technical. So if you’re looking for philosophical musings, or just a chuckle or two over the latest bizarre goings on in our neck of the woods, come back later.

But if you’ve ever had to worry about pleading and proving FDA actions without formal discovery – especially doing it on Rule 12 (more…)

When we stepped to the plate to defend the Supreme Court’s adoption of a “plausibility” standard for pleading in Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), we knew that academia had been almost uniformly critical. It still is.

But we also learned something else – our peers (often more than that, actually) among the trial bar, agree (more…)