Drug & Device Law

JANUARY 4, 2024

Finally, while PREP Act preemption is the focus of today’s post, to the extent that the Texas Complaint can be read to allege – and we think it can – either: (1) direct fraud on the FDA or (2) that the FDA’s approvals (both emergency and/or final) of the defendant’s vaccine should not have been granted, Buckman Co.

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Drug & Device Law

DECEMBER 4, 2023

2001). “[A] federal court in a diversity case should be reluctant to expand state common law.” 341 (2001). Basically, CPAP II purported to do precisely what Buckman itself prohibited: using express preemption to limit the “ordinary working” of implied preemption of fraud on the FDA claims. 2001), aff’d , 358 F.3d

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Drug & Device Law

SEPTEMBER 18, 2023

341 (2001). So, if a plaintiff contends that a defendant abused the ASR program, that is a Buckman -preempted fraud on the FDA claim. Conversely, violation claims involving the ASR program are paradigmatic examples of agency fraud/private FDCA enforcement that are impliedly preempted by Buckman.

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Drug & Device Law

AUGUST 11, 2023

Plaintiff asserted various fraud and breach of warranty claims, and alleged that “hydrogen peroxide is ineffective in treating minor cuts and abrasions because, contrary to popular belief, it does not reduce rates of wound infection… and does more harm than good because it also destroys beneficial bacteria and healthy cells that promote healing.”

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Drug & Device Law

JULY 24, 2023

What’s worse, the fraud on the FDA claim, if brought under state law, would be preempted by Buckman Co. 341 (2001). Fourth, similar factual problems were shoved under the rug with respect to the purported “pattern of racketeering activity” – allegations of “mail fraud and wire fraud.” Plaintiffs Legal Committee , 531 U.S.

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Drug & Device Law

JUNE 19, 2023

As discussed here , the primary allegations asserted the same sort of “fraud on the FDA” claim that, when brought as a common-law tort claim, were held preempted in Buckman Co. DePuy False Claims Act litigation was a particularly abusive misapplication of the FCA for legal reasons. Plaintiffs Legal Committee , 531 U.S.

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FDA Fraud 59

Drug & Device Law

JANUARY 30, 2023

341 (2001), with the rejection of the so-called “purposes and objectives” prong of implied preemption by the most conservative justices (at least in terms of federalism) on the Court. Plaintiffs Legal Committee , 531 U.S. Plaintiffs Legal Committee , 531 U.S. Mensing , 564 U.S. Mensing , 564 U.S. Lohr , 518 U.S.

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Drug & Device Law

DECEMBER 30, 2022

In 2001, the Supreme Court made getting past motions to dismiss harder when it held in Buckman that plaintiffs could not recover claims predicated on violations of FDA regulations. An unfortunate fiction developed post- Buckman —particularly after Riegel v.

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FDA Fraud 59

Drug & Device Law

DECEMBER 9, 2022

2001), aff’d sub nom. Accordingly,” the court concluded “the opinion of Dr. Rosenzweig does not demonstrate a genuine issue of material fact that Defendants acted with ‘malice, oppression or fraud’ under California Civil Code § 3294.” Id. Pfizer, Inc ,196 F. 2d 984 (C.D. Pfizer Inc. Roerig Div.) 3d 659 (9th Cir.

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Drug & Device Law

NOVEMBER 28, 2022

2001) (Kilburn); and Wade-Greaux v. I-Flow Corp. , 2d 1092, 1119-25 (D. 2010) (Matsen); Nelson v. Tennessee Gas Pipeline Co. 1998 WL 1297690, at *4, 7-8 (W.D. 31, 1998), aff’d , 243 F.3d 3d 244 (6th Cir. Whitehall Laboratories, Inc. , 1441, 1559-62 (D.V.I. 1994), aff’d mem. , 3d 1120 (3d Cir. 1994) (Gilbert).

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Drug & Device Law

SEPTEMBER 29, 2022

341 (2001). Regardless of its underpinnings, Buckman clearly proscribes as preempted state-law fraud-on-the-FDA claims. Albrecht , 139 S. 1668, 1672 (2019). Whether or not the Frye court properly understands Albrecht , it flatly misconstrued Buckman Co. Plaintiffs’ Legal Committee , 531 U.S. 2022 WL 4305656, at *5, *7.

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Drug & Device Law

JUNE 9, 2022

In our initial post, we focused on the exception to the presumption, which allows liability to be imposed if a plaintiff alleges and ultimately proves that the defendant manufacturer committed fraud on the FDA. We explained that the exception is contrary to Buckman Co. Plaintiffs’ Legal Committee , 531 U.S.

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Drug & Device Law

MAY 5, 2022

Stated differently, the rebuttal provision makes allegations and evidence of fraud on the FDA a prerequisite to state-law liability. But state-law claims that rest on alleged fraud on the FDA are contrary to Buckman Co. Plaintiffs’ Legal Committee , 531 U.S. 21 U.S.C. § McNeil Consumer & Specialty Pharms., 3d 372 (5th Cir.

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Drug & Device Law

FEBRUARY 24, 2022

341 (2001), stands for the proposition that only the federal government may enforce the Food, Drug, and Cosmetic Act and that any state-law claim that depends on the existence of the FDCA is impliedly preempted by 21 U.S.C. § Plaintiffs’ Legal Committee , 531 U.S. Plaintiffs constantly try to evade Buckman. Medtronic, Inc. , 3d 1026, 1034 n.22

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Drug & Device Law

FEBRUARY 1, 2022

Her claims included negligence, strict liability, breach of implied and express warranty, and fraud. 341 (2001) as impermissible attempts at private enforcement of the FDCA. Plaintiff also failed to plead her fraud claims with the specificity required by Rule 9(b). Plaintiffs’ Legal Comm. , The court agreed.

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