Subject: Prescription Drugs

Solving the Culpable Co-Defendant Problem: An Update on Preserving Your Client’s Defenses after a Culpable Co-Defendant Files a Motion for Summary Judgment in California State Court

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California appellate courts have recently provided much needed clarity for defendants wishing to preserve the ability to attribute fault to a potentially culpable co-defendant seeking summary judgment. We previously addressed this issue in a 2021 blog post, highlighting the uncertainty facing defense counsel where granting summary judgment to a co-defendant would preclude an empty chair defense. Two published 2025 decisions now confirm that defendants can oppose a co-defendant’s summary judgment motion directly with no cross-complaint required.

This is a rare and tricky situation. Defendants in multiparty litigation often share interests. Opposing a co-defendant’s motion can inflate costs, strain relationships, and ultimately benefit plaintiffs. But sometimes preserving the ability to attribute fault to a co-defendant is necessary to protect your client.

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Third Circuit Confirms Correlation Still Does Not Prove Causation

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A recent Third Circuit decision is a useful and quotable reminder that temporal correlation is not enough to prove causation.

Causation is an indispensable element of any product liability action. It is the same in pharmaceutical third-party payor (TPP) class actions, where it is often the element most likely to defeat class certification. Unsurprisingly, plaintiffs often employ creative workarounds in an effort to sidestep obvious causation problems. In In re Avandia Marketing, Sales Practices and Products Liability Litigation, — F.4th —, 2026 WL 2093904 (3d Cir. July 21, 2026), the Third Circuit made clear that there are no shortcuts.

According to the plaintiff TPPs, the defendant pharmaceutical manufacturer had marketed the medication at issue as not only treating diabetes but offering cardiovascular benefits too. The plaintiffs claimed that the promotional campaign caused physicians to prescribe the medication at inflated rates, forcing the plaintiffs to reimburse prescriptions they would not otherwise have covered.

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California Supreme Court Rejects Duty to Innovate

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On August 3, 2026, the California Supreme Court issued its decision in the closely watched Gilead Tenofovir Cases, No. S283862, — Cal.5th —, 2026 WL 2223748 (Cal. Aug. 3, 2026), rejecting the so-called “duty to innovate.” The court held, in a 6-1 decision, that “a drug manufacturer has no duty of care when deciding whether and when to develop and commercialize an allegedly safer alternative drug” to replace an admittedly nondefective drug. The decision is a significant victory for pharmaceutical manufacturers and carries substantial implications for product liability litigation across industries.

Background

The case arose from a Judicial Counsel Coordination Proceeding comprising more than 30,000 plaintiffs — HIV patients who took Gilead’s tenofovir disoproxil fumarate (TDF). Plaintiffs did not claim TDF was defective; it is undisputedly a life-saving medication. Instead, they alleged Gilead unreasonably delayed bringing an alternative medication, tenofovir alafenamide (TAF), to market, depriving them of a purportedly safer option and allegedly causing kidney, bone, or tooth injuries.

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Message Received – Delaware Follows Federal Rule of Evidence 702

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The Delaware Superior Court took the mass tort world by surprise with its May 31, 2024, refusal to exclude the plaintiffs’ experts’ causation opinions in the Zantac litigation, breaking with the federal MDL court’s prior exclusionary order and applying Delaware Rule of Evidence 702 “with a liberal thrust favoring admission.” The ruling was so unexpected that some outlets questioned whether Delaware courts would become a new preferred venue for mass tort plaintiffs. But, in a rare move, the Delaware Supreme Court granted the defendants’ request for interlocutory appeal — despite the Superior Court’s refusal to certify the order — and has now restored order, reversing the Superior Court’s decision and remanding for further proceedings. In re Zantac (Ranitidine) Litig., — A.3d —, 2025 WL 1903760 (Del. July 10, 2025).

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In re Taxotere (Docetaxel) MDL Court Rejects Plaintiffs’ Argument that Lone Pine Order is Unfair

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We think Lone Pine orders are pretty fair. Lone Pine orders are case management orders that require plaintiffs in multidistrict litigation (MDL) to produce specific evidence without which the plaintiffs cannot make a prima facie case. There is nothing unfair about dismissing a case that is fatally flawed for want of critical evidence that cannot be obtained. Yet Lone Pine orders rarely sit well with plaintiffs who cannot (or do not want to have to) make the showing required of them. Rather than accept their fate, these plaintiffs often attack the Lone Pine order in an effort to delay the inevitable. We discussed one such effort in the In re Zostavax MDL in 2022 and earlier this year. The In re Taxotere (Docetaxel) MDL now provides another example, not only of how plaintiffs attack Lone Pine orders but also of how courts should respond to these unmerited attacks. In re Taxotere (Docetaxel) Prods. Liab. Litig., 2024 WL 4362982 (E.D. La. Oct. 1, 2024).

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FDA Publishes New Artificial Intelligence & Medical Products White Paper

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On March 15, the United States Food & Drug Administration published a white paper entitled “Artificial Intelligence & Medical Products: How CBER, CDER, CDRH, and OCP are Working Together.” FDA announced the paper by sharing a short letter from Commissioner Califf, where he reaffirmed the Agency’s commitment to “promoting the responsible and ethical development, deployment, use, and maintenance of safe and effective medical products that incorporate or are developed with AI.” The white paper does not contain any new pronouncements of FDA position, but refers to existing guidance and serves as a reinforcement for existing FDA policy regarding AI.

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