US FDA Takes Star Turn In Recent Product Liability Lawsuits

Michael Imbroscio is quoted in Pink Sheet regarding changes in pharmaceutical mass tort litigation. Mr. Imbroscio notes there has been a shift away from mass tort complaints against the branded pharmaceutical industry to other consumer products, which are less regulated and for which plaintiffs have more flexibility in establishing proof of use. The slowing down of complaints against branded drug developers may be due to the fact that plaintiffs’ lawyers recognize that “dodging the potholes around preemption is going to be more difficult,” he says.

While previously a court could punt the issue to a jury, judges will now have to decide the issue up front. This has had a big impact on how courts are looking at preemption and as a consequence how defense counsel are framing the issue in court, Imbroscio says. “It tees up motions to dismiss and also requires the court to decide the issue at the summary judgment phase.”