Frankly, even for us, it’s getting hard to find stuff. And since we actually wrote all these blasted posts, and presumably remember at least some of what’s in them, we can imagine how hard it must be for the rest of our readers. We’ve tried with the topic tags, but they’re something of a blunt instrument, and even worse, by now some of those topics are getting pretty unwieldy themselves, with more than 50 posts for several of the more heavily covered categories.
We like to know where things are too. It's embarrassing not being able to tell people that kind of thing.
So this is going to be a really boring post. We’re lawyers, not librarians, but we’re going to try to organize things so that people - like us - who want to use our research posts (as opposed to our single-case posts and other stuff) can find them.
If you’re looking to be entertained, come back tomorrow. But if you’re a reader who thinks you might actually want to use the blog’s research resources, you’ll want to save this post somewhere.
Here’s how we’re going about this.
Most of our serious research has been of two types. We’ve either discussed topics as topics, and done so on a nation-wide basis, or on a lesser number of occasions, we’ve explicitly done that research in 50-state fashion, with the research formally divided on a state-by-state basis. We’ll keep to that division here. First we’ll list our state-by-state research topics, and we’ll follow that with other nationwide research organized by topic.
Finally, we’ll provide the dates for each post, so any user will know where, chronologically, our research stopped.
STATE-BY-STATE NATIONWIDE RESEARCH
Substantive Law:
Consumer Fraud – Extraterritoriality rejected (9/13/07)
Fraud on the Market – Fraud on the market causation theories rejected outside of the federal securities law context (1/25/10)
Learned intermediary rule – Medical device cases, Who’s adopted it and who hasn’t (7/10/08)
Learned Intermediary Rule – Pharmacists protected from by rule from liability (2/24/11)
Learned Intermediary Rule – Who’s adopted it and who hasn’t (7/5/07 – occasionally updated)
Market Share Liability – Who's adopted it and who hasn’t (7/15/10)
Medical Monitoring – Who's adopted it and who hasn’t (4/15/09)
Misuse – In pari delicto defense (8/23/07)
Nuisance – Municipal cost recovery rule (5/3/07)
Preemption – Embedded fraud on the FDA claims preempted under Buckman (9/3/09)
Product Liability – Adoption of the Restatement (Third) of Torts, Products Liability §2 (9/10/10)
State Of The Art Defense – Defense applied in prescription drug/medical device litigation (3/20/09)
Unavoidably Unsafe Product – States recognizing comment k “across the board” (10/8/08)
Procedural law:
Discovery – Informal physician interviews, who allows them and who doesn’t (12/18/08 – sometimes updated), and again (8/16/07)
Online Appellate Judicial Websites – How to get online opinions from every federal and state appellate court (4/29/10)
Removal – Pre-service removal (10/1/09)
GENERAL NATIONWIDE RESEARCH
Substantive law:
Administrative law – Administrative causation standards are more lax than legal standards and should be excluded under Daubert (4/8/10)
Administrative law – No private FDCA right of action (Feb. 18, 2010)
Consumer Fraud – Lack of damages (2/5/09)
Consumer Fraud – Regulatory compliance as defense (5/24/07)
Damages – Lack of injury dismissals (7/3/08 – regularly updated)
Duty to Test – Precedent rejecting duty (8/27/10 – regularly updated)
Emotional Distress – Grounds for defeating emotional distress claims in drug/device litigation (2/3/11)
Heeding presumption – Precedent rejecting presumption (7/2/09)
Informed Consent – Off-label use need not be disclosed (1/14/10), and again (6/21/07)
Learned Intermediary Rule – Direct to consumer exception (1/20/11)
Learned intermediary rule – Policy reasons for rule (7/6/07)
Learned Intermediary Rule – Warning causation cannot be proved by “reasonable doctor” expert (4/19/07)
Negligence – Duty (9/17/09)
Negligence per se – State-law defenses to FDCA-based negligence per se actions (2/12/09), and again (2/7/08)
Preemption – Buckman applies to fraud on agencies other than the FDA (9/25/08)
Preemption – HIPAA does not preempt informal defense interviews of treating physicians (2/15/07)
Preemption – OTC drugs (11/25/08)
Preemption – PMA devices generally, post-Riegel (8/21/08 – regularly updated)
Preemption – PMA devices where the FDA classification has arguably changed (10/7/10)
Preemption – Post-Levine drug/vaccine cheat sheet (10/02/10 – regularly updated)
Preemption – Post-Riegel parallel violation claims (7/30/09), and again (12/18/08), and again (6/26/08)
Product Identification – Brand name manufacturer sued where the plaintiff only took the generic version (11/12/09 – regularly updated)
Punitive Damages – Compliance as a defense (11/5/09), and again (3/8/07)
Punitive Damages – Territorial limits to jurisdiction to impose (12/29/06)
Recalls – Duty to recall, subsequent remedial measures and other recall-related issues (9/24/09)
Res Ipsa Loquitur – Broken medical devices are not ipso facto defective (12/31/09)
Sales Representatives – Fraudulent joinder (7/14/09)
Warnings – Causation issues (10/2/08), and again (5/8/08)
Warnings – Expert proof requirement in learned intermediary rule cases (6/11/09)
Warnings – No duty to warn about competing products (7/19/07)
Warnings – No duty to warn of risks the plaintiff never suffered (4/1/10), and again (10/26/07)
Procedural law:
Adverse Event Reports – Rejecting their use, either as evidence or as a basis of expert testimony (5/27/10 – regularly updated), and again (6/7/07)
Class Actions – Cross jurisdictional statute of limitations tolling (8/7/08 – regularly updated), and again (3/22/07)
Class Actions – Cy pres (10/15/09)
Class Actions – Federal courts rejecting class actions in drug/device cases (6/24/10 – regularly updated)
Class Actions – Punitive damages (7/17/09), and again (2/26/09)
Class Actions – Single issue certification (11/19/09)
Class Actions – State courts rejecting class actions in drug/device cases (7/1/10 – regularly updated)
Daubert – 2.0 relative risk standard for more likely than not (12/28/07)
Daubert – Differential diagnosis as faulty methodology (5/7/09)
Discovery – Counsel’s ability to speak with his/her own witness during an ongoing deposition (2/10/11)
Discovery – Lone Pine orders (8/11/08)
Discovery – Protection of customer lists from discovery (4/2/09)
Discovery – Translation of non-English documents not required (7/9/08)
Evidence – Exclusion of animal studies (7/19/07)
Evidence – Exclusion of corporate ethics expert (7/19/07)
Evidence – Exclusion of foreign regulatory standards (8/7/07)
Evidence – Exclusion of fraud on the FDA evidence (7/19/07)
Evidence – Exclusion of warning letters (4/21/10)
Evidence – Warning changes as subsequent remedial measures (2/2/10)
Expert Witnesses – Legal conclusion opinions not allowed (3/14/08), and again (2/9/08)
Joinder – Misjoinder (Jan. 7, 2010)
Judicial Notice – FDA-related materials (7/2/09), and again (4/17/08), and again (9/20/07)
Pleading – Moving to dismiss MDL master complaints (8/20/09)
Pleading – TwIqbal barring “and/or” pleading (7/23/09)
Pleading – TwIqbal in PMA preemption cases (12/9/10)
Pleading – TwIqbal in prescription drug/device litigation (5/13/10 – regularly updated)
Pleading – TwIqbal in product liability cases generally (8/6/09)
Pleading – TwIqbal in state court (10/29/09)
Pleading – TwIqbal and complaints removed to federal court (11/18/10)
Removal – Several removal issues (10/1/09)
Trial – Consolidated multi-plaintiff trials (12/16/11)