As 2020 ended, our loyal readers joined us in reviewing our worst decisions of the past year – true superspreaders of litigation against our clients – and our best decisions of the past year, which we termed “tort pandemic countermeasures.” As we do each year, we’re pleased to announce that four of your bloggers (Bexis, Eric Alexander, Steven Boranian, and Rachel Weil) will be presenting a free 90-minute CLE webinar on “The good, the…

Albert Einstein supposedly said, “Insanity is doing the same thing over and over again and expecting different results.”  He may not have, but the point is well taken.  We often think the same thing – particularly about plaintiffs that sue manufacturers of FDA premarket-approved (“PMA”) medical devices with vague, boilerplate complaints.  Haven’t they heard about preemption and Riegel v. Medtronic, Inc., 552 U.S. 312 (2008)?  Have some lawyers skipped continuing legal education for over a…

Here’s another quasi-guest post by Reed Smith’s blogger-in-training Dean Balaes.  This one provides a critique of the scary Park doctrine, aptly described here as “Frankenstein’s Monster,” that allows imposition of criminal liability on corporate officers for illegality they didn’t even know about. ********** In 1816, Mary Shelley and Lord Byron entered into a wager to see who could create the greatest horror story.  Shelley envisioned a scientist who was determined to create life yet was…

We recently came across the law review article, E. Lindenfeld, “Clear Evidence Clarified,” 75 Food & Drug L.J. 346 (2020).  Since it cited and critiqued a number of our blogposts, we thought it was appropriate to reply. Our initial impression is that the Lindenfeld article is comparatively reasonable – that is, compared to some prior P-side analysis of Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), we’ve seen.  We do…

This post is from the non-Reed Smith side of the blog. We posted last week about In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2020 WL 7418006 (D.N.J. Dec. 18, 2020), a decision that came in just time to take a sport on our Worst of 2020 post.  Just as we were expressing our displeasure with that decision, the court entered another ruling.  This time on standing and this time far from all…

Today’s guest post is from Wendy Lumish and Daniel Rock of Bowman & Brooke.  We sought them out because they wrote  a successful amicus curiae brief in the case they discuss.  That case is a major win for all Florida defendants, bringing Florida summary judgment practice into the Twenty-First Century.  As always our guest posters are 100% responsible for what they write, deserving all the credit (and any blame). ********** This guest post is…

Plaintiffs tend to assert a bunch of different claims.  For prescription medical device cases, setting aside preemption, our experience is that plaintiffs do best—that is, avoid summary judgment and directed verdict—with design defect (strict liability or negligence) claims.  One reason for that is that it tends not to be hard to make up some theory, working backwards from the alleged injury, of how the design posed a risk and it could have been made better. …