Hard to believe, but there are some plaintiffs who shun federal court. You all are as capable as we are of filling in the blank as to why that is so. Be that as it may, plaintiff attorneys have perfected all sorts of ways to avoid Article 3 judges and jury pools that draw from broader geographic areas. Naming a non-diverse defendant is one obvious example. Another is to plead damages that are under the…

In a significant PMA preemption win, the Ninth Circuit rejected a plaintiff’s attempt, in a breast implant case, to base a “parallel” violation claim on nothing more than a res ipsa loquitur inference. Weber v. Allergan, Inc., ___ F.3d ___, 2019 WL 5090757 (9th Cir. Oct. 11, 2019).  Weber involved a Class III breast implant that allegedly suffered “gel bleed.”  The plaintiff tried to turn a factual statement in the product’s labeling – that in…

For several years, Bexis has served as an Advisor to the American Law Institute’s (“ALI”) Third Restatement of Torts, Intentional Torts to Persons project.  These things, by their nature, take a long time, but this particular project is drawing to a close.  Unfortunately, however, the last part of the last section of the last draft – a “miscellaneous provision” – is highly objectionable to prescription medical product liability defendants, more frequently in drug cases, but…

California and Idaho share some similarities, but also many differences.  Both are sprawling Western states.  Both are year-round meccas for outdoor activities of all types, whether it be hiking, skiing, rafting, mountain biking, or just gazing idly at some of the most stunning scenery you will ever hope to see.  Both California and Idaho have areas in their far northern reaches that are sparsely populated and where some people go just to be left alone. …

In our How Not To Create an “Exception” to the Learned Intermediary Rule post two years ago, we criticized a couple of Texas trial court cases for attempting to create a company compensation exception to the learned intermediary rule, that prior decisions had almost universally rejected.  That post includes a comprehensive discussion of nationwide precedent that has considered the effects (mostly negligible) of a treating physician receiving financial payments (royalties, consulting fees, clinical trial recruitment…

Today is John Winston Lennon’s birthday. He would have turned 79 on this date but for a truly crazed assassin. Imagine stalking someone because of Catcher in the Rye! Lennon wrote many marvelous songs (we especially like his early stuff, such as “Hard Day’s Night,” “If I Fell,” and “Help”). But since this is the Drug and Device Law blog, it feels almost obligatory to supply a list of Lennon’s top ten drug songs. Here…

The last baseball player to reach a .400 batting average for a season was Ted Williams in 1941.  In a sport that probably keeps more stats than any other, baseball sees records broken and milestones reached all the time.  Some marks, however, appear to be set in stone.  One of these is Ted Williams’s 1941 season.  Some consider it the best offensive season in baseball ever.  That the record has stood for 78 years seems…