In-House Counsel

Drug And Device Product Liability Litigation Strategy, Explained

Avoid missing a trick when defending cases in one of the most important areas of federal litigation.

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Most folks who go in-house stop writing substantive books that serve, in part, to generate business.

Not me.  The second edition of my book, Drug and Device Product Liability Litigation Strategy (Oxford University Press 2018) (affiliate link), has just been published.

Of course I have to use my little megaphone at Above the Law to hawk that book.  But no one’s going to click through to read a story titled “Drug and Device Product Liability Litigation Strategy.”  And no one’s going to click through to read a post titled Oxford University Press Publishes Great New Treatise!

(I tried that latter title six years ago, when the first edition of the book appeared; no one bothered clicking through back then.)

So I’m trying a new scam.  Look at the titles of stories over at Vox.  Half the titles are either “Blather, Blather, Explained” or “Blather, Blather:  What We Know.”  The folks at Vox aren’t stupid, so those titles must attract readers.  Hence, the explanation for my title today:  The name of my book, followed by the word “Explained.”  Let’s hope it works.

Anyway, about the book.

It’s a 400-page treatise about the defense of pharmaceutical and medical device product liability claims.

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And we (I have two co-authors, David B. Alden of Jones Day and Geoffrey M. Drake of King & Spalding) tucked a couple of interesting things in those pages.

(It’s like “Where’s Waldo?”  Find the interesting stuff in the 400 pages!  I dare ya!)

Okay, here’s a hint:  The law of personal jurisdiction has changed in favor of the defense since we published the first edition back in 2011.  Daimler AG v. Bauman and Bristol-Myers Squibb Co.  v. Superior Court of California together make it far more difficult for plaintiffs to aggregate mass tort claims in states that are the domicile of neither the defendant nor the plaintiffs.  That helps defendants avoid the aggregation of mass tort claims in a jurisdiction chosen only because the jurisdiction is known to be favorable to plaintiffs.

Where else is Waldo?

Back in 2011, it appeared as though the Judicial Panel on Multidistrict Litigation would consolidate a bunch of ham sandwiches.  No more.

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Between the time of the MDL Panel’s formation in 1968 and June 2014, the MDL Panel granted 185 out of the 255 motions that it received to coordinate product liability cases, for a 72.55 percent grant rate.  But the tide turned in 2015.  In 2015, the Panel granted only 47.8 percent of the motions to centralize that it heard, and in 2016 the Panel had only a 47.2 percent grant rate.

It looks like you’ll have to eat your ham sandwich alone.

Could Waldo be hidden over there in that corner?

Perhaps he’s hidden beneath the learned intermediary doctrine.  West Virginia (alone among the states) had rejected the learned intermediary doctrine in Johnson & Johnson v. Karl.  The legislature fixed that in 2016 by adopting the doctrine legislatively.

But there’s more!

The Supreme Court and Congress amended in 2015 the Federal Rules of Civil Procedure that govern written discovery.  If you were stuck with the first edition of my book, you’d still be using the old rules.  But with the new edition, you can right yourself.

And on and on and on.  Drug and Device Product Liability Litigation Strategy doesn’t exactly belong on everyone’s bookshelf.  It’s a big, heavy, pseudo-academic (it’s really more practical than academic, though it’s published by a university press) tome that covers an area of law encyclopedically.  (Or, if not encyclopedically, at least it gives you a good start for doing your research.)  So don’t buy it for yourself.  But, if your firm practices in the drug and device space — and your firm should, because drug and device cases account for nearly 45 percent of the federal caseload — the book belongs in your firm’s library.

So don’t spend your money; spend other people’s money!

Have your firm invest in the book, and avoid missing a trick when defending cases in one of the most important areas of federal litigation.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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