tag:blogger.com,1999:blog-36762711.post1579949620235249630..comments2023-11-03T06:14:58.449-04:00Comments on Drug and Device Law: Iqbal Saves Some DoughRachel B. Weilhttp://www.blogger.com/profile/02251124525069607080noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-36762711.post-5425326664825831862009-08-04T10:55:16.656-04:002009-08-04T10:55:16.656-04:00I have to agree with Max on this and yes, I am a p...I have to agree with Max on this and yes, I am a plaintiff's lawyer, but I practiced as a defense lawyer for many years doing products work and it is completely a catch 22. In the pharma world, yes you can obtain certain public information through published studies and reports that can assist you in obtaining certain factual information. But alleging specific facts regarding what the defendant manufacturer knew and when it knew it is virtually impossible until you obtain discovery from the company. <br /><br />Same goes with issues of manufacturing defect. As an example in auto products litigation, until you obtain the internal specs of the component at issue, which you can only obtain through discovery (and after agreeing to a overlybroad protective order)it is very difficult to confirm that in fact the component was not made to specification. <br /><br />There is a reason the courts have referred to the term as "discovery"...its your ability to discover information that supports your claim.Unknownhttps://www.blogger.com/profile/18059949458966292413noreply@blogger.comtag:blogger.com,1999:blog-36762711.post-65744006406474363192009-08-03T20:12:46.416-04:002009-08-03T20:12:46.416-04:00Yet she'll be free to amend her complaint if s...Yet she'll be free to amend her complaint if something does come out during discovery on her supported claims. I see no reason the system should condone out and out fishing expeditions. Or would you prefer a situation where any plaintiff can plead any fanciful claim and then force discovery expenses on the defendant before the case can be killed?<br /><br />Bring those actions you can at least support with some facts.<br /><br />If you don't have anything, Buckman should probably kill your case anyway.Soronel Haetirhttps://www.blogger.com/profile/11639906179427371695noreply@blogger.comtag:blogger.com,1999:blog-36762711.post-81335824849201525012009-08-03T19:23:05.018-04:002009-08-03T19:23:05.018-04:00Anon,
Good job actually responding to Max's a...Anon,<br /><br />Good job actually responding to Max's argument. Pray tell how a plaintiff can satisfy this pleading requirement prior to discovery? <br />Waaaaah, the poor pharma corp. would have been subject to the expense of discovery. <br />Discovery wouldn't be so expensive if corporations didn't hire biglaw firms, charging by the hour, to resist divulging every responsive document that would hurt their position in litigation. <br />Great, so we've pared down claims we have no clue as to the verity thereof. Given how impossible it is to get product liability cases past dispositive motion practice, it's not like defendants need yet another device at their disposal. This is only a good thing if you think even legitimate claims shouldn't get their day in court.JBnoreply@blogger.comtag:blogger.com,1999:blog-36762711.post-18021320712765503252009-08-03T17:34:34.088-04:002009-08-03T17:34:34.088-04:00Cry me a river Max.
She has legitimate claims th...Cry me a river Max. <br /><br />She has legitimate claims that survived the motion. They may even be meritorious.<br /><br />She has no reason to believe that there was a defect in the manufacturing or design. There is no reason that she should be able to force the expense of discovery on the defendant in relation to claims.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-36762711.post-19074897071342729902009-08-03T09:57:34.525-04:002009-08-03T09:57:34.525-04:00It'd be much more helpful if she filed a compl...It'd be much more helpful if she filed a complaint filled with detailed allegations about the biochemistry behind her injury and the defendants' knowledge of such biochemistry.<br /><br />Except that, she can't do that, not unless Novartis willingly provides her with access to all of their clinical trials and research.<br /><br />Which they won't.<br /><br />In sum: you can't file a lawsuit without alleging detailed facts, but you can't get that factual detail without discovery in a lawsuit.<br /><br />Catch-22. <br /><br />I don't see how that serves the interests of justice.Max Kennerlyhttp://www.litigationandtrial.comnoreply@blogger.com