Mass Tort Litigation Blog

The Advance and Retreat of Pre-emption

Was going through some old issues of the ABA Journal and found this interesting article from the May issue -- Business Downturn: As the market tumbles, so does the corporate pre-emption defense, by David G. Savage.  Here's an excerpt:

For much of the decade, business lawyers and the Bush administration insisted state liability laws and state regulation amounted to a costly nuisance and a drag on the economy. They said uniform national regulation of business made more sense, and they urged the Supreme Court to limit lawsuits and to pre-empt state regulations.

For years those arguments were winners. Last year, Riegel v. Medtronic barred most lawsuits against the makers of medical devices. Lawyers for the Bush administration and device makers said state jurors should not be permitted to second-guess Food and Drug Administration regulators once they have approved a device as safe and effective.

BGS

More on Iqbal

Adam Liptak of the New York Times has an article in yesterday's Times on how Iqbal has affected pleading thus far.  He notes that the decision has already been cited over 500 times in the last 2 months.  Here's an excerpt with a quote from Steve Burbank: 

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Courts applying Iqbal have been busy. A federal judge in Connecticut dismissed a disability discrimination suit this month, saying that Iqbal required her to treat the plaintiff’s assertions as implausible. A few days later, the federal appeals court in New York dismissed a breach of contract and securities fraud suit after concluding that its account of the defendants’ asserted wrongdoing was too speculative.

Steve Burbank has an article titled Pleading and the Dilemmas of 'General Rules,' which discusses both Iqbal and Twombly.  The Article is available here through SSRN.

ECB

Subprime Public Nuisance Case Rejected by Northern District of Ohio

Brian P. Brooks (O'Melveny & Myers) has published his article, Public Nuisance Litigation Against Subprime Industry Hits Roadblock in Cleveland, in the July Issue of the Federalist Society's Engage.

BGS

Plaintiffs' Expert Testimony on General Causation Excluded in Non-Fusarium Eye-Infection Contact-Lens Case Against Bausch & Lomb

Article in AmLaw Litigation Daily -- Shook Hardy Wins Junk Science Dismissal for Bausch & Lomb, by Ben Hallman.  Here's an excerpt:

In 2006 Bausch & Lomb yanked its ReNu Moisture Lock contact lens solution from store shelves following a Centers for Disease Control study that showed an association between the product and eye infections. The problem related to a specific kind of fungus called fusarium. Left untreated, a fusarium infection causes all sorts of nasty eye problems, including cornea scarring, which requires surgery. Over the last few years, Bausch & Lomb has settled about 400 fusarium claims. The company also faced claims from contact wearers who have gotten non-fusarium infections. On Wednesday, New York state court judge Shirely Kornreich threw out the case, ruling that plaintiffs had failed to present any compelling evidence that linked eye infections of other varieties to the Bausch & Lomb product.

And here's a link to the opinion by Justice Kornreich of the New York Supreme Court, New York County.

BGS

Federal Court in NJ Dismisses Off-Label-Marketing Suit Against Schering-Plough

Article in AmLaw Litigation Daily -- Schering-Plough Wins Dismissal of 'Off-Label' Suit, by Ben Hallman.  Here's an excerpt:

A recent decision by a New Jersey federal court sets a tough standard for plaintiffs trying to piggyback on government investigations of off-label drug marketing. In dismissing a lawsuit against Schering-Plough, federal district court judge Stanley Chesler ruled that even if the company has violated off-label marketing rules--as it seems to have done for two cancer drugs--plaintiffs must prove that the drug was marketed for an ineffective use, and that the patient received no benefit from it.

And here's a link to the opinion by Judge Chesler.

BGS