We tend to favor a “glass half full” outlook.  We are preternaturally sunshiny during our daily “how was your day” calls from the 86-year-old Drug and Device Law Dowager Countess.  (We have not mentioned, for example, that our aging dog has begun sleeping most of the day and barking most of the night, resulting in an exponential escalation of the coffee intake required for even marginal function.)  On a larger scale, while we have not…

We got our second anti-Covid jab this week, so we’ll celebrate by discussing a COVID/PREP Act case. The PREP Act (PREP stands for “Public Readiness and Emergency Preparedness”) declaration of immunity is limited to “covered countermeasures” obtained either through agreement with the federal government or otherwise in response to the COVID-19 pandemic. The purpose of PREP Act immunity was to incentivize the supply of goods needed to combat scourges such as the coronavirus. In Avicolli…

The California state court consolidated Incretin litigation has closely followed its MDL counterpart.  We reported on the trial court’s preemption-based dismissal here.  But, after reporting on the Ninth Circuit’s undoing of the federal dismissal, we opted not to explore the California Court of Appeals decision essentially doing the same thing at the state level.  See Rotondo v. Amylin Pharmaceuticals, Inc., 2018 WL 5800780 (Cal. Ct. App. Nov. 16, 2018).  Suffice it to say that…

When last we tuned into the In re Incretin-Based Therapies (“Incretin”) multi-district litigation, the Ninth Circuit had just undone a preemption-based dismissal – but only on procedural grounds.  As we discussed, here, the Ninth Circuit avoided the merits, but ruled that the MDL court had erred in “rel[ying] on Buckman [Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001)] to circumscribe discovery.”  In re Incretin-Based Therapies Products Liability Litigation, 721 F. Appx. 580, 582…

Sometimes a case has one bright shining point floating in a sea of not-so-good ones, or a stand-out result lost among outcomes that should have gone the other way.  That describes Isaac v. C.R. Bard, Inc., No. A-19-CV-895, 2021 WL 1177882 (W.D. Tex. Mar. 29, 2021), a case remanded from the Bard IVC filter MDL.  As in other filter cases, the plaintiff in Isaac alleged complications following the implantation of a filter following a medical…

Today we report on a recent decision dismissing manufacturing-defect, warranty, and failure-to-warn claims arising from an allegedly defective breast implant. Although the decision, D’Addario v. Johnson & Johnson, 2021 WL 1214896 (D.N.J. 2021), does not stray far from the beaten path, it covers ground worth revisiting. The decision is a useful (if cursory) reminder that plaintiffs challenging the safety or effectiveness of Class III medical devices with premarket approval may not rely on the res…