Released in 1965 by the Miracles, “The Tracks of My Tears” is ranked by Rolling Stone as the “Greatest Motown Song of All Time.” Smokey Robinson’s lead vocals are pure silk, the harmonies ooze soul, and  the guitar licks and strings tie it all together.  The song and the Miracles helped spread Motown around the globe.  Today’s decision about an artificial tears product won’t stack up against Smokey and the Miracles, but it hits a few chords worth sharing. Mosley v. EzriCare, 2024 WL 1342615 (E.D. Ky. Mar. 29, 2024) is a putative economic loss class action arising from the purcha ..read more

Lately we have been thinking that perhaps nothing stirs a plaintiffs’ lawyer more than a product liability mass tort except an economic loss class action.  Why?  Money, for one.  Control, for another.  We regularly complain that plaintiffs’ lawyers save money by doing little-to-nothing to investigate their clients’ personal injury claims in product liability MDLs.  It may not be much, but plaintiffs’ lawyers do have to do a little work in product liability mass torts.  They advertise for clients (misleadingly or otherwise), enter into attorney-client relationships ..read more

Much like the placement of a comma, differences in capitalization can affect meaning quite a bit.  Take PrEP and PREP.  The former refers to the use of certain antiviral medications for pre-exposure prophylaxis to HIV, which has been hailed as a paradigm shift in treating HIV.  We recall that FDA was so impressed with the first published studies supporting PrEP that it asked the manufacturer of the study drugs—a three-in-one pill—to apply for the novel indication.  One of those drug substances, tenofovir, has for the last few years been the subject of a truly bizarre theory ..read more

We have not written much on data privacy lately, but it remains a hot topic and one that changes rapidly as governments around the world (including numerous U.S. states) enact new data privacy laws.  One thing that has not changed is the standard for proving a data privacy breach under California’s medical confidentiality statutes.  For nearly ten years, that standard has been set by a duo of California opinions, Regents and Sutter Health, which held that a breach of confidentiality under the California Confidentiality of Medical Information Act (“CMIA”) requires that an unauthorized ..read more

When we say “bananas,” today’s case is actually about bananas, that herb people tend to call a fruit.  It is also quite unusual and complicated.  Because it also involves some tragic underlying events, our quips are done.  A bit of etymology is warranted, though.  We used the term “judge-made law” in the title and that can have a negative connotation sometimes.  Many of the substantive due process rights recognized by the United States Supreme Court in the roughly seventy years before the current term could be called “judge-made.”  Critics of those decisions might ..read more

Growing up down in Georgia, Bexis used the phrase “a whole lotta nuthin’” frequently when encountering things (like the 1970s Underground Atlanta tourist trap) or people (like Lester Maddox, who governed the same way he rode bicycles) that didn’t impress him much.  That’s the phrase that came to mind when we read In re E. I. du Pont de Nemours & Co. C-8 Personal Injury Litigation, ___ F.4th ___, 2023 WL 8183812 (6th Cir. Nov. 27, 2023).  Indeed, the opening sentence of the du Pont opinion was:  “Seldom is so ambitious a case filed on so slight a basis.”  Id. at 81.  ..read more

In stark contrast to the “MDL treatment” that the Valsartan plaintiffs received earlier this year, the decision in Post v. Amerisourcebergen Corp., 2023 WL 5602084 (N.D.W. Va. Aug. 29, 2023), was more mainstream.  Class certification was denied for a variety of good reasons. Unlike the result, the Post class action allegations, were relatively unusual.  The members of the class were all patients of the same physician.  Plaintiffs alleged that “defendants” “unlawfully made payments to [the physician] to induce him to misdiagnose” them so that they were eligible for the product at ..read more

In 1919, J. Edgar Hoover described Communism as a “conspiracy so vast” that it was impossible for the populace to comprehend it.  The Palmer Raids and the first Red Scare soon followed. That phrase echoed in our minds when we first read In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2023 WL 1818922 (D.N.J. Feb. 8, 2023).  The Valsartan opinion was similarly mind-boggling in its scope.  It certified not one, not two − but four class actions:  one for economic loss, one for third-party payors (“TPPs”), and two for medical monitoring (“remedy” and ..read more

We have often characterized preemption as one of the most powerful tools in product liability defense lawyers’ toolboxes.  It also gets utilized effectively by lawyers defending against a variety of consumer fraud cases about FDA-regulated products.  We have, for instance, covered a number of decisions where plaintiffs complained about a range of food labeling issues that are often quite trivial, like how much air is in a bag of chips or whether a food labeled “organic” meets the plaintiff’s personal standards.  We also have talked about nutritional supplements, which occupy par ..read more

We’ve discussed recently how a federal statute intended to allow suits against international terrorists has been misapplied as allowing suits against pharmaceutical companies.  While there’s still hope for that dangerous deviation to be rectified, another federal statute, the Racketeering Influenced Corrupt Organizations (“RICO”) Act has been so widely abused that it is rarely, if ever used against its congressionally intended target – organized crime – in civil litigation. Back in 2019, our fourth worst decision was Painters & Allied Trades District Council 82 Health Care Fund v. Tak ..read more