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Dec 10, 2024 | 
openlegalblogarchive.org | Michelle Hart Yeary
Just last week we blogged about our disappointment over the Third Circuit’s resurrection of a “benefit of the bargain theory” of standing in Huertas v. Bayer US LLC, 120 F.4th 1169 (3d Cir. 2024). But we also recognized that Huertas had a silver lining that defendants could still use to challenge standing—by challenging the quality/quantity of plaintiff’s allegations of product testing. Mere days later we happened upon a defendant that did just that in Pineda v.
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Sep 9, 2024 | 
jdsupra.com | Noah Becker |Allison DeJong |Michelle Hart Yeary
Dechert Re:Torts is a monthly newsletter covering news and developments related to product liability and mass torts litigation.
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Apr 23, 2024 | 
lexblog.com | Michelle Hart Yeary
It has been some time since we have discussed False Claims Act (“FCA”) litigation over alleged promotion of a prescription drug for off-label uses. And when we read United States ex rel. Hearrell v. Allergan, Inc., 2024 U.S. Dist. LEXIS 70888 (E.D. Tex. Apr. 18, 2024) we were reminded why. Off-label promotion is not ipso facto false. Plaintiff alleged that defendant promoted Botox for the off-label use of pediatric migraine therapy.
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Apr 16, 2024 | 
lexblog.com | Michelle Hart Yeary
Remember the case we told you about last week where the court shutdown plaintiff’s attempt to use non-mutual offensive collateral estoppel? Well, that wasn’t that plaintiff’s only loss that week. In a companion decision, the court also rejected plaintiff’s attempt to use Federal Rule of Civil Procedure 43(a)’s remote trial testimony rule to skirt the jurisdictional limitations of Rule 45(c)(1). Coblin v. Depuy Orthopaedics, Inc., 2024 WL 1357571 (E.D. Ken. Mar. 29, 2024).
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Apr 9, 2024 | 
druganddevicelawblog.com | Michelle Hart Yeary
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Apr 9, 2024 | 
lexblog.com | Michelle Hart Yeary
We have previously analogized that when a case is dismissed for failure to state a claim under Rule 12, that is like the plaintiff not even getting to first base. And that when a complaint is dismissed for lack of standing, a rarer form of dismissal, the plaintiff couldn’t even get up to bat, let alone get on base. A dismissal for lack of standing recently occurred in Gibriano v. Esai, Inc., 2024 U.S. Dist. LEXIS 59535 (D.N.J. Mar. 31, 2024).
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Mar 26, 2024 | 
lexblog.com | Michelle Hart Yeary
So plaintiffs learned in the In re: Gardasil Products Liability Litigation, MDL 3036, 2024 WL 1197919 (W.D.N.C. Mar. 20, 2024). Try as they did in 550-paragraph and 120-page complaints to muddle their claims, the court cleared away the muck and found what was left was almost all preempted by the Vaccine Act. While pending motions to dismiss were stayed when the MDL first was created, the court gave defendants permission to file two bellwether Rule 12 motions.
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Mar 19, 2024 | 
lexblog.com | Michelle Hart Yeary
Sometimes there’s a little something for everyone. Today’s case has personal jurisdiction, corporate veil piercing, PMA preemption, statute of limitations, and learned intermediary. Not every decision on these issues goes the way we think it should, and perhaps the thorns outnumber the roses, but it caught our attention nonetheless. The case is Franks v. Coopersurgical, Inc., 2024 WL 1109055 (D.R.I. Mar. 14, 2024).
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Mar 12, 2024 | 
lexblog.com | Michelle Hart Yeary
Depending on your age, today’s title may evoke images of Hayley Mills or Lindsay Lohan. We won’t ask you which. It can be your secret. But in an industry where remakes are rarely worth the price of admission, the Parent Trap is a rare exception, and we won’t fault you for liking both. Today’s parent trap is slightly different, and not just because it does not involve an adorable teen playing twins to trick their parents into getting back together.
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Mar 5, 2024 | 
lexblog.com | Michelle Hart Yeary
Plaintiffs in mass tort drug and device litigation do not like to focus on the individual cases. They like to amass the individual cases. They like to file the individual cases. But as we see all too often those filings tend to be indiscriminate and without the benefit of proper early vetting. That is what leads to situations like the Taxotere MDL we discussed last week – eight years of litigation and thousands of cases without basic proof of injury.
