We wrote a few days ago about a favorable ruling on a state human tissue shield statute in Heitman v. Aziyo Biologics, Inc. (N.D. Fla.). That case gave us another good procedural ruling to share, rejecting a trick we see all too often: an attempt to join a non-diverse defendant post-removal.
Latest from Drug & Device Law
The Intersection of Telehealth, Privacy, and Medical Devices
One good thing that occurred during the pandemic was the expansion of telehealth. Telehealth existed already and probably would have been expanding anyway, but patient willingness to get care from home instead of risking exposure from an in-person visit paired well with provider interest in not going to or even having to maintain an office.
Welcome to Hell
Plaintiff lawyers read this blog, which we like. Criticism occasionally comes our way because the blogposts – horrors! – harbor a particular point of view. And that point of view occasionally gets recharacterized as bias or an admission against our clients. Such recharacterizations are invariably nonsensical. So far, they have never obtained even a foothold
Erie Doctrine Requires Narrow Interpretation of Florida Human Tissue Shield Statute
Adding to the growing favorable precedent concerning state human tissue shield statutes is Heitman v. Aziyo Biologics, Inc., 2024 WL 4019318 (N.D. Fla. Jul. 22, 2024).
The plaintiff alleged that he was infected with tuberculosis from an unfortunately contaminated human tissue allograft that was implanted in his spine during surgery. The plaintiff alleged that
Loper Bright Likely Lays Lohr Low
We recently examined one possible beneficial impact of the Supreme Court’s recent landmark decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) – that it could bring about critical re-examination of the FDA’s questionably supported ban on truthful off-label speech.
Well here’s another one: Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).
There Is No Substitute: Arizona Law Does Not Permit FDA Warnings To Stand In For Expert Opinion
We reported last year on a case in which the Arizona Court of Appeals allowed FDA-approved drug warnings to define the standard of care for a physician’s informed consent. Why does that matter? Well, in most every jurisdiction, a plaintiff bringing an action for medical negligence has to produce expert opinion that the defendant breached
Guest Post – You Can’t Always Get What You Want – Plaintiff’s Failure To Accept Defendant’s Offer Of Judgment Results In Defendant’s Recovery Of Costs And Attorneys’ FeesGuest Post –
Today’s guest post is from Reed Smith counsel, and rock music aficionado, Kevin Hara. He describes the twists and turns of pursuing an unreasonable plaintiff and counsel who unwisely turned down a Florida offer of judgment in a sizable damages/lousy liability case. While the victorious defendant didn’t get all the costs and fees it
Debunking Another Stunningly Wrong MDL Expansion of Liability
In Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008), the court, applying California law, correctly “decline[d plaintiff’s] invitation to create a new exception” to that state’s privity requirement “that would permit [plaintiff’s] action to proceed.” Id. at 1023-24. “[A] federal court sitting in diversity is not free to create new exceptions” to state
General Causation Finally Sinks Acetaminophen MDL
Speaking of the United States’ newly ratified Constitution, Benjamin Franklin wrote in 1789: “in this world nothing can be said to be certain, except death and taxes.” We would like to add to this list another certainty—summary judgment in a drug case without expert proof of general causation. So, when the court excluded all of
Another Pretty Potent Painkiller Preemption Decision
Even though lawyers who bill for their time defending product liability cases might favor those cases sticking around and plaintiffs getting many chances before inevitable dismissals with prejudice, we have been clear that we think plaintiffs should not get to re-plead around preemption once courts have defined the preempted path. There seems to be an