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So plaintiffs learned in the In re: Gardasil Products Liability Litigation, MDL 3036, 2024 WL 1197919 (W.D.N.C. Mar. 20, 2024). Try as they did in 550-paragraph and 120-page complaints to muddle their claims, the court cleared away the muck and found what was left was almost all preempted by the Vaccine Act. While pending motions to dismiss were stayed when the MDL first was created, the court gave defendants permission to file two bellwether Rule 12 motions.
A few years ago, we detailed the efforts of the plaintiffs’ bar to tweak the Restatement of Torts to decrease the chance that a suit for damages would be defeated because the plaintiff engaged in a criminal act. The Restatement (Second) from 1979 called this the Wrongful Acts Doctrine, but the concept has a long history that has resulted in many names for determining when there is or is not a bar to recovery based on the plaintiff’s criminal conduct.
Nothing emphasizes the impermanence of just about everything as Hawaii – where Bexis is right now on vacation. On Kauai, Bexis had a boat drop scheduled to Kalalalu Beach, for three days on the Kalalau Trail, all permits obtained. But several months ago, the heavens opened, and the Na Pali Coast received over an inch of rain an hour for more than a day. A large number of avalanches, floods, and sinkholes ensued.
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