Litigation is the Pits – Claim Dismissed for Injuries Caused by Natural Food Substance

January 25, 2019
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FDA General Litigation Off Label Product Liability
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“A lady bit down on a pit in an olive …” may sound like the opening line to a bad joke, but the defendant she sued for her injuries appears to have had the last laugh. The plaintiff filed a personal injury claim against the defendant in California state court for products liability and pursued theories of strict liability, negligence and breach of an express written warranty. This claims arises from plaintiff’s purchase of several cans of “Lindsay’s Large Pitted Olives” that she planned to…
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FDA Resumes Inspections of Certain Foods during Government Shut Down

Rosa Forrester

FDA Commissioner Dr. Scott Gottlieb announced this week that he was requesting furloughed federal employees to return to work and resume inspections of certain high-risk foods. Typically, the FDA conducts about 160 food inspections per week. Inspections have been halted since the federal government shut down and 40% of the FDA’s workforce was put on furlough. Dr. Gottlieb stated that he hoped that several hundred workers would return without pay to resume inspections of foods such as soft cheeses, seafood, some fruits and vegetables, baby…
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Notable Win for Baby Powder Manufacturer & Distributor, as New Jersey Federal District Court Judge Grants Motion Dismissing Claims for Lack of Standing

Aaron M. Schiffrik

On July 14, 2017, a New Jersey Federal District Court Judge handed Johnson & Johnson a victory in a case involving talc and ovarian cancer, dismissing the plaintiff’s amended complaint for lack of standing and for failure to state a claim. Initially, the plaintiff filed her complaint in California Federal District Court, alleging that Johnson & Johnson engaged in unfair business practices by manufacturing, marketing, and distributing talc-based baby powder products without informing consumers that use of baby powder by women could lead to an…
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Ninth Circuit Outlines for Plaintiff How to Meet the Twombly/Iqbal Standard in a Third Amended Complaint

October 27, 2015
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Litigation Strategies Medical Device Product Liability
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Sean T. Stadelman

In this case, the plaintiff, Nicole Weber, appealed the United States District Court for the District of Arizona’s dismissal of her second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The issue on appeal before the Ninth Circuit panel was whether Weber’s allegations were sufficient to survive a 12(b)(6) motion under the Twombly/Iqbal standard requiring a complaint to set out a plausible claim. Since the Supreme Court’s rulings in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, federal district courts have seen…
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First Circuit Affirms Preemption of State-Law Claim for Consumer Fraud

March 23, 2015
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Class Action Consumer Fraud Claims Duty to Warn Labeling Pharmaceuticals Preemption Product Liability
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Jill C. Owens

In a key preemption ruling late last month, the United States Court of Appeals for the First Circuit affirmed the dismissal of a putative class action. The First Circuit affirmed dismissal where the plaintiffs alleged consumer fraud, holding that state-law claims for false or misleading labeling are preempted by federal law. Read the full decision here. The First Circuit’s ruling built upon recent United States Supreme Court decisions holding that state-law claims aimed at generic drug labeling are preempted by applying this important defense to…
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Judge Precludes Plaintiffs’ Experts that “Cherry Picked” Evidence

March 16, 2015
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Litigation Strategies Pharmaceuticals Product Liability
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Lisa M. Robinson

A recent win for the defense in New Jersey highlights how challenging an expert’s use of unreliable data and methods can be an effective way to prevail. The carefully drafted February 20, 2015 opinion by Judge Nelson Johnson of the Superior Court of New Jersey was a major win for the pharmaceutical manufacturer of Accutane, an acne medication, which the plaintiffs’ said caused them to develop Crohn’s disease. The decision is available here through Law360. Judge Johnson issued his decision after a hearing that…
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Pennsylvania Supreme Court Overrules Azzarello But Declines Opportunity To Adopt Restatement Third of Torts

Matthew R. Shindell, Sean T. Stadelman and Life Science Matters

On November 19, 2014, the Pennsylvania Supreme Court issued its much-anticipated decision in Tincher v. Omega Flex, Inc.Having originally granted allowance of appeal to decide whether to replace the strict liability analysis of Section 402A of the Restatement Second, Pennsylvania’s highest court declined the opportunity and instead overruled its 1978 ruling in Azzarello vs. Black Brothers, 391 A.2d 1020 (Pa. 1978). The four justice majority opinion (available here), written by Chief Justice Ronald D. Castille, held that Pennsylvania will continue to apply…
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Defendants in Mass Tort Pelvic Mesh Lawsuits May Now Succeed With Removal to Federal Court – Non-Diverse Defendant Wins Dismissal

September 11, 2014
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Class Action Design Defect Drug/Medical Device FDA Litigation Litigation Strategies Medical Device News Pharmaceutical/Medical Device/Biotechnology Product Liability Summary Judgment
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Lisa M. Robinson

In a significant win for Secant Medical LLC, (Secant), Judge Arnold L. New of the Court of Common Pleas of Philadelphia County granted its motion to dismiss mass tort pelvic mesh personal injury claims in a decision dated August 22, 2014. The court held that under the Biomedical Access Assurance Act (BAAA), Secant is not a manufacturer or seller of the pelvic mesh. Secant, a Pennsylvania company, was undoubtedly named to defeat diversity jurisdiction in an effort by plaintiffs to stay in state court in…
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