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The attorneys at TheLawFirm.com are pleased to see that the Third Circuit US Court of Appeals has ruled that federal preemption of state-law claims is a question of fact for a jury to decide, not a question of law for a judge. This ruling is a major setback for Big Pharma who often try to have claims denied by bringing summary judgment motions.
Preemption means that State law failure to warn lawsuits (such as talcum powder or Taxotere for example) are pre-empted by federal law. The defense also usually claims that there is “clear evidence” that the FDA would not have approved a warning label that the plaintiffs claim is necessary. The “clear evidence” language comes from a US Supreme Court case called Wyeth v. Levine. That case says that state law failure to warn claims are preempted by federal law when there is “clear evidence” that the FDA would not have approved a label change. As you can imagine, this language has caused a lot of confusion among the courts and with lawyers.
This ruling is important because the Court ruled that whether the FDA would have rejected a label change is a question of fact for the jury. At the summary judgment stage, the court cannot decide for itself whether the FDA would have rejected a change, but must instead ask whether a reasonable jury could find that the FDA would have approved the change.
It remains to be seen whether this case will be appealed to the United States Supreme Court. It also remains to be seen whether trial judges give the ruling teeth and actually allow these questions to go before a jury. How juries respond to the often technical evidence about the internal workings of the FDA is a big question mark for attorneys.
We founded TheLawFirm.com so that you could find award-winning legal representation that doesn't cost anything until your personal injury attorney wins for you. When you go online to look for a personal injury attorney, whether its for a car accident, a defective medical drug or the death of a loved one due to negligence, many sites that pop up are not even real attorneys. They are call centers staffed by people who don’t have a clue about the law. They take your information and then they sell you to whichever attorney will pay them for your phone number. They don’t care if the personal injury attorney has experience with your type of case. They just want someone - anyone to pay them for your information.
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Pharmaceutical giant Johnson & Johnson finds itself the subject of two class-action lawsuits filed in 2014, both of which claim the company is responsible for giving women ovarian cancer through its high-selling talcum powder products, Johnson’s Baby Powder and Shower to Shower. Johnson and Johnson’s® Baby Powder is one of the most popular products containing talcum powder, may increase the risk of ovarian cancer when used for feminine hygiene. Recent court cases have shined a spotlight on the possible link between women's regular use of talcum powder on their genitals and an increased risk of developing ovarian cancer. More...
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Injured In A Car, Truck or Motorcycle?
Every day millions of Americans travel within the United States for business, vacations, errands and countless other reasons. Unfortunately, thousands of those trips result in personal injury or even death. Thousands of Americans are seriously injured or killed in a car accident or truck accident while driving in the United States each day. More...
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Are You A Victim or Hip Revision Surgery Gone Wrong?
Metal-on-metal (MoM) hip implants were originally marketed as more durable and innovative than their older counterparts. Claims that they would extend the lifespan of artificial hip joints have proven false as MoM hip implants often fail prematurely and pose serious health problems. Metal-on-metal hips include models from DePuy ASR, DePuy Pinnacle, Stryker, Zimmer, Wright and others. More...
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How Do Medical Devices Get Approved By the FDA?
This Video Will Shock You!
Have you ever wondered how all of the medical devices that cause pain, suffering and sometimes death get approved by the FDA?
What this video by TheLawFirm.com and see if you're as shocked as most people are when they realize the truth.
Defective Medical Devices and Defective Drugs
Are you the victim of a defective medical device or a “bad” drug that is subject to a recall?
Read these helpful hints if you're every in need of more information.
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