Bexis

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JAMES M. BECK is Counsel resident in the Philadelphia office of ReedSmith. He is the author of, among other things, Drug and Medical Device Product Liability Handbook (2004) (with Anthony Vale). He wrote the seminal law review article on off-label use cited by the Supreme Court in Buckman v. Plaintiffs Legal Committee. He has written more amicus briefs for the Product Liability Advisory Council than anyone else in the history of the organization, and in 2011 won PLAC's highest honor, the John P. Raleigh award. He has been a member of the American Law Institute (ALI) since 2005. He is the long-time editor of the newsletter of the ABA's Mass Torts Committee.  He is vice chair of the Class Actions and Multi-Plaintiff Litigation SLG of DRI's Drug and Device Committee.  He can be reached at jmbeck@reedsmith.com.  His LiinkedIn page is here.

Latest Articles

Our recent post about the First Amendment decision in American Beverage Ass’n v. City & County of San Francisco, ___ F.3d ___, 2019 WL 387114 (9th Cir. Jan. 31, 2019) (en banc) (“ABevA”), holding unconstitutional a purported product “safety warning” was more than enough to set the old First Amendment juices flowing.  Ninth Circuit en banc decisions involve the largest panels of judges in the country, and ABevA featured no less than four different interpretations…
We’ve been waiting quite a while for the FDA to modernize its positions on the truthful off-label communications by regulated manufacturers.  Under current First Amendment practice, the FDA’s positions are quite likely unconstitutional as both speaker- and topic-based restrictions on the truthful communication of scientific information.  However, the best we’ve seen from the Agency to date was a “statement,” issued last June, that truthful off-label communications to third-party payers (or “payors,” if you’d…
Ever since innovator liability burst onto our consciousness a decade ago with the horrific decision in Conte v. Wyeth, 85 Cal. Rptr.3d 299 (Cal. App. 2008), we have had nightmares about the potential impact of this theory.  After all: (1) over 90% of all prescriptions these days are for generic drugs, and (2) plaintiffs claiming injury from generic drugs are largely prevented from suing their actual manufacturers due to preemption.  Even if generic drugs, by…
Congress authorized multidistrict litigation “for the convenience of parties and witnesses” and to “promote the just and efficient conduct of such actions.”  28 U.S.C. §1407(a).  As we’ve documented in many posts in our MDL topic, the reality – at least in product liability mass torts involving prescription medical products – is so far from what Congress intended as to call the entire process into question. Instead of convenience, we see the Rules of Civil…
Defendants in prescription medical product liability litigation are at an inherent disadvantage in discovery already.  Our clients have lots and lots of electronically stored information and old-fashioned paper documents.  Plaintiffs . . . not so much.  With our opponents having many categories of information to choose from, we think that it’s not that much to ask the other side at least to provide a reasonably detailed, case-specific set of document requests – and in many cases that’s…
We’ve been chronicling the troubles that defendants have been having in getting Pennsylvania courts to follow the Due Process requirements of personal jurisdiction since Daimler AG v. Bauman, 571 U.S. 117 (2014).  We lamented that Pennsylvania seemed to be going off the deep end while discussing Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133 (Pa. Super. 2018).  Webb-Benjamin relied on a couple of federal district court opinions, Bors v. Johnson & Johnson, 208…
It was a Merry Christmas and a Happy New Year for Tucker EllisDustin Rawlin and his breast implant defense team – and they were considerate enough to share it with us. Wait a minute, you might be saying, breast implant litigation?  Isn’t that passé? I n a sense, we’d agree with you.  This isn’t your father’s breast implant litigation.  Twenty or more years ago, one of the first wave of solicitation-driven medical device…
That part of this title is borrowed from a fellow blogger’s post does not at all detract from its fundamental truth.  Attention to personal jurisdiction wins cases – particularly in MDLs in which lawyers are out there recruiting clients, rather than the other way around.  The latest example is In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2019 WL 121199 (E.D. Pa. Jan. 7, 2019).  Zostavax also underscores why a case we recently discussed,…
Last week Bexis published a Legal Backgrounder for the Washington Legal Foundation, entitled “Recent Rulings Establish New Beachheads For Preemption In Drug And Device Product Liability Litigation.”  It discusses several 2018 prescription medical product liability preemption rulings and what they portend for future litigation concerning the most powerful defense that our clients have.  If you’re interested, you can read it here.…
We’ve reviewed the transcript of the oral argument in Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290 (U.S.), e.g., the United States Supreme Court appeal from the horrible decision in In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268 (3d Cir. 2017), which we ranked as the worst case in all of 2017.  Our one sentence reaction – We’d rather be us than them. The Fosamax plaintiffs have a lot of…