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Articles by Eric Alexander
There Is No Need To Feel Bad About Dismissing A Barred Case
As if our reputation as curmudgeonly and heartless defense lawyers needed burnishing, our post today gripes about how the Fifth Circuit affirmed the dismissal of two related cases brought by a decedent’s estate. This griping arguably ignores the sage advice we have received from a few trial judges to sit down and stop arguing after we have won some contested issue. Still we persist.
There Is No Need to Feel Bad About Dismissing a Barred Case
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing Phillips v. Ethicon Endo-Surgery, Inc., in which the U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of two related implied warranty cases involving a prescription surgical stapler. Eric reviews the plaintiff's failure to provide the pre-suit notice required under Texas law, along with the procedural decisions that ultimately prevented the claims from moving forward.
We Would Get Sanctioned If We Behaved Like That
Several years ago, the Blog started posting fairly regularly about decisions challenging vaccine mandates and policies enacted by a range of public and private entities. The reason why there was a spate of such decisions starting around mid-2001 is pretty obvious.
We Would Get Sanctioned If We Behaved Like That
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing Doe v. Oceanside Union Free School District, which reinforced the standards courts apply when evaluating medical exemption requests to school vaccination requirements. Eric examines the court's denial of a preliminary injunction after finding that the plaintiff failed to support her exemption request with sufficient medical evidence and relied on representations the court determined were inaccurate or misleading.
Express Preemption for a de novo Device with Special Controls Should Have Been the End
Litigation attorney Eric Alexander published a blog for Drug & Device Law examining Higginbottom v. Dexcom Inc., a decision from the U.S. District Court for the Southern District of California addressing express preemption in litigation involving a Class II medical device cleared through the U.S. Food and Drug Administration's (FDA) de novo process and subject to special controls.
Two Strikes Was Enough in California Federal Court
Litigation attorney Eric Alexander published a blog for Drug & Device Law examining Mizuno v. Sanofi Vaccines U.S. Inc., a decision from the U.S. District Court for the Eastern District of California that dismissed all claims against prescription drug manufacturers without leave to amend. The court found the plaintiff's claims were barred by California's two-year statute of limitations and preempted under federal law.
Buckman Limits Claims in a Commercial Case
Litigation attorney Eric Alexander published a blog for Drug & Device Law discussing Desai v. StimLabs LLC, a Georgia Superior Court decision addressing the scope of Buckman implied preemption in a commercial dispute involving human cells, tissues, and cellular and tissue-based products (HCT/Ps). In the case, a dermatology practice claimed it was defrauded into purchasing products represented as lawfully marketed and eligible for reimbursement by the Centers for Medicare & Medicaid Services (CMS).
Claims Can Still Be Preempted If the Drug Is Later Withdrawn
Litigation attorney Eric Alexander published a blog for Drug & Device Law discussing Cosey v. Global Blood Therapeutics Inc., a decision from the U.S. District Court for the Northern District of Illinois holding that prescription drug claims may remain preempted even after a manufacturer voluntarily withdraws a product from the market.
Second Circuit Disappoints with Big Reversal
Litigation attorney Eric Alexander published a blog for Drug & Device Law discussing Rutledge v. Walgreen Co., a decision from the U.S. Court of Appeals for the Second Circuit that revived plaintiffs' general causation expert testimony in the acetaminophen autism/ADHD multidistrict litigation after a district court had excluded it under Federal Rule of Evidence 702.
An Ultra Processed Complaint Fails
Litigation attorney Eric Alexander published a blog for Drug & Device Law discussing Martinez v. Kraft Heinz Co., a decision from the U.S. District Court for the Eastern District of Pennsylvania dismissing claims against 11 food manufacturers after a plaintiff alleged that consuming 179 different food and beverage products over more than a decade caused him to develop type 2 diabetes and steatohepatitis.
Not Everyone Can Hop on a Bandwagon: Product Identification Still Matters
Litigation attorney Eric Alexander published a blog for Drug & Device Law discussing Leon v. Zydus Pharms. Inc., a decision from the U.S. District Court for the Southern District of New York granting summary judgment to a defendant manufacturer after the plaintiff failed to present any evidence of product identification.
Pleading Around Obvious Defenses
Litigation attorney Eric Alexander published a blog for Drug & Device Law examining Owens v. Johnson & Johnson Co., a U.S. District Court for the Northern District of California decision that underscores how plaintiffs may need to plead around obvious defenses when asserting drug and device claims.
A Device That Uses Magnetic Levitation Sounds Pretty Innovative to Us
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing Galdamez v. Abbott Cardiovascular Sys., Inc., a California state court decision involving product liability claims against the sponsor and manufacturer of a left ventricular assist device used in a clinical trial.
Calif. Justices to Weigh Gilead Negligence Claim in HIV Suit
Litigation attorney Eric Alexander was highlighted in a Law360 article commenting on a case before the California Supreme Court that could create a new standard for negligence under product liability law. The case arose when a group of plaintiffs sued drugmaker Gilead, accusing it of continuing to sell its HIV drug tenofovir disoproxil fumarate (TDF) to boost profits despite knowing it could pivot to a safer alternative in tenofovir alafenamide fumarate (TAF).
Supreme Court Rejects Preemption: Does It Matter For Drug And Device Cases?
No, not that case. The appeal of the FIFRA preemption rulings in glyphosate litigation is still pending. This decision is Hencely v. Fluor Corp., No. 24-924, 2026 U.S. Lexis 1868 (U.S. Apr. 22, 2026), which involves the preemption of negligence claims against a military contractor in connection with a terrorist attack on the Bagram Airfield in Afghanistan. In some ways, the Hencely case is worlds away from product liability claims related to medical products.
Changes Are Coming: What History Teaches About Tort Litigation Over Social Media and Software
Litigation attorney Eric Alexander co-authored a Washington Legal Foundation article examining how recent social media tort verdicts may signal a broader expansion of liability for software-driven products and services.
Supreme Court Rejects Preemption: Does It Matter for Drug and Device Cases?
Litigation attorney Eric Alexander published a blog for Drug & Device Law examining the U.S. Supreme Court's decision in Hencely v. Fluor Corp., which reversed lower court rulings that state law negligence claims against a military contractor were preempted.
More Than a Feeling Required in Psych Drug Case
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing Stockwell v. Sumitomo Pharma America Inc., a decision dismissing most claims in a product liability suit involving an antipsychotic medication and alleged psychological injuries.
Another State AG Action On Electronic Cigarettes Impliedly Preempted
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing State ex rel. Yost v. Elevate Smoke, LLC, an Ohio appellate decision holding that a state attorney general’s consumer protection claims against a vaping retailer were impliedly preempted because, in substance, they sought to enforce the federal Tobacco Control Act.
Clinical Trial Sponsor Not Liable for Sponsoring Clinical Trial
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing Graw v. Eli Lilly & Co. (E.D. Mo.), a decision dismissing with prejudice a clinical trial participant's claims seeking to hold a study sponsor liable for alleged injuries and site-level conduct during a diabetes trial.
No Physical Injury, No Economic Damages, No Standing, No Class
Litigation attorney Eric Alexander published a blog for Drug & Device Law examining a recent class certification decision in Searcy v. Gilead Sciences Inc. involving tenofovir-based HIV medications.
Digital Health Liability Law In Flux
Not quite three years ago, we co-authored a chapter in a Digital Health guide put out by International Comparative Legal Guides. It bore the pithy title “Predicting Risk and Examining the Intersection of Traditional Principles of Product Liability Laws with Digital Health.” We continue to tinker with the principles of product liability law and monitor how they intersect with digital health, software, artificial intelligence, and other aspects of our increasingly abstract existence.
Digital Health Liability Law in Flux
Litigation attorney Eric Alexander published a blog for Drug & Device Law discussing how product liability principles are being tested and reshaped as digital health products, software-driven medical devices and artificial intelligence (AI) become more prevalent.
New Juror Dynamics Call for Fresh Approach to Expert Evidence Original
Changing juror dynamics gained momentum during the Covid-19 pandemic and have persisted despite its end. • Millennial and Gen Z jurors generally expect more efficient and technologically advanced presentations during trials, but attorneys should be cautious of over-generalizing differences among juror age groups. • Growing distrust of governmental institutions and science means litigators will need to choose experts and present evidence differently.
New Juror Dynamics Call for Fresh Approach to Expert Evidence
Litigation attorneys Eric Alexander and Anne Beehler co-authored a Bloomberg Law article on how post-pandemic shifts in juror expectations are changing trial strategy and the presentation of technical evidence.
This Post Is Not About Trademarks or Defamation
Litigation attorney Eric Alexander published a blog for Drug & Device Law discussing the U.S. District Court for the Southern District of Indiana's decision in Eli Lilly & Co. v. Premier Weight Loss of Ind. LLC, a dispute that, although pled as trademark infringement, false advertising and defamation, ultimately turned on U.S. Food and Drug Administration (FDA) and Federal Food, Drug and Cosmetic Act (FDCA) issues.
Nevada Court Rejects Purported Parallel Claim Based on a Purported Violation Based on a Purported Defect Based on Market Withdrawal
Litigation attorney Eric Alexander published a blog for Drug & Device Law discussing a recent decision from the U.S. District Court for the District of Nevada in Purohit v. Abbott Labs., Inc., involving a Class III bioprosthetic heart valve.
What to Do When Jurors Don't 'Trust the Science'
Litigation attorney Eric Alexander, who leads Holland & Knight's Product Liability – Life Sciences Team, was featured in a Law360 article exploring how lawyers are adapting to shifting attitudes toward scientific research and federal regulatory agencies.
Venue? We're Talking About Venue? Yes, Venue
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing the Texas Court of Appeals' mandamus decision in In re AstraZeneca Pharms. LP ("In re AZ"), which addressed venue under the Texas Health Care Program Fraud Prevention Act (THFPA), the state's mini-False Claims Act.
Unreliable Specific Causation Opinions Take Down Valsartan Bellwether
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing the Valsartan multidistrict litigation (MDL) decision in Roberts, where the court excluded the plaintiff's sole specific causation witness under the 2023 amendments to Federal Rule of Evidence 702 and granted summary judgment to the defendants in the first bellwether case.
Fourth Circuit Revives Problematic Public Nuisance Claim
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing the U.S. Court of Appeals for the Fourth Circuit's decision in City of Huntington v. AmerisourceBergen, which reversed a district court bench‑trial win for opioid distributors by broadening West Virginia public nuisance law.
Q&A: Drug and Medical Device Litigation
Product Liability – Life Sciences Team Leader Eric Alexander was quoted in a Financier Worldwide Q&A on emerging product liability trends in the drug and medical device sector. Mr. Alexander spotlighted the key regulatory updates from the U.S. Food and Drug Administration (FDA) as well as legislative changes that may lead to increased litigation on vaccines and other medical products and technology, including artificial intelligence (AI).
Still Preempting OTC Drug Claims Over Alleged Contamination
Not too long ago, we tried to extrapolate from a doctoral thesis on quantum dots to lessons for litigation.
Still Preempting OTC Drug Claims Over Alleged Contamination
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing two recent class actions over alleged benzene in over-the-counter drugs that were dismissed on federal preemption grounds. In Kouyate v. Harvard Drug Group and Leonard v.
New California Ranitidine Litigation Order Makes a Huge Mess of Everything
Litigation attorney Eric Alexander published a blog for Drug & Device Law analyzing a California coordinated proceeding order in In re Ranitidine Cases (JCCP 5150) that, in his view, disrupts basic civil procedure and product liability principles.
Questionable California Cough Medicine Consumer Class Lingers
We have seen a number of consumer fraud class action cases brought over a range of fairly ticky tacky issues about OTC drugs and consumer products.
The State of State of Mind Testimony by Experts
The issue of the state of mind or intent of a party can play out a number of ways based on the nature of the case. In the criminal context, proof of the mens rea of the defendant is typically an element in the statutory definition of the crime. In a civil contract case, whether the parties had a meeting of the minds and how one party actually interpreted disputed provisions can be central issues to decide.
Guest Post - Another Potentially Bubbly Battle Over Hydrogen Peroxide Fizzles Out
Today’s guest post is by Amy McVeigh and Jessica Farmer, who are partners at Holland & Knight. They comment on the demise of another purported class action against a manufacturer of hydrogen peroxide, which is an FDA-regulated over-the-counter (“OTC”) drug. As always our guest posters deserve 100% of the credit (and any blame) for for their work. ********** Today’s post dives into the fizz of legal battles over the adequacy of labeling of over-the-counter (“OTC”) hydrogen peroxide.
Double Shot Thursday: “The More Things Change” And “Of Puppets And Standing”
As insightful and modest as the Blog can be, we are not infallible. Every once in a while, two posts get written on the same decision, sometimes because we try to make sure a new post goes up every non-holiday weekday of the year. Because of the aforementioned modesty, however, we are hesitant to deprive our readers of our insights. So, we present two posts in one, the latter of which overlaps some with a prior post by a new Blog contributor.
The Expanding Breadth Of Nexus
Back in 2020, we noted the possible broad implications of a Buckman preemption decision in a somewhat unusual economic loss case that turned on whether a compounded pharmaceutical needed FDA approval through an NDA. When that case, Nexus Pharms., Inc. v. Cent. Admixture Pharm. Servs., Inc., 48 F.4th 1040 (9th Cir. 2022), was affirmed in the Ninth Circuit, we bestowed on the decision to distinct honor of being our third best decision of 2022.
Generic Causation Experts Excluded In Sweeping Ruling From The Acetaminophen MDL
It is not uncommon that terms are used without knowledge of their origin and that the origin is instructive about the meaning or proper application of the term. We offer two examples. Many lawyers who at least dabble in product liability litigation have heard the term “Bradford Hill criteria.” Was it named after two different people like Smoot and Hawley or Hatch and Waxman? Was it developed as a cheat sheet for lawyers and judges? No and no.
The Goose And Gander Of Buying The Science
For as long as we have been representing drug and device companies in product liability litigation, the plaintiffs have accused our clients of “buying the science.” Sometimes, this has allegedly been by funding studies or offering support to outside researchers such as free product or access to administrative support. Sometimes, this has allegedly been by not initiating or funding researcher that might have supported (or, as they rarely offer, debunked) plaintiffs’ causation theory.
In Pari Delicto By Any Other Name Would Still Be A Bar
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.
In Pari Delicto By Any Other Name Would Still Be A Bar
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.
The Fiction Of Non-Preempted Pre-Market Design Defect Claims For Prescription Drugs
As we emerge from our fourth month-long trial in a little over two years, we are sure that we have missed some recent legal developments. As good as this Blog is as a source for what is going on in drug and device product liability litigation, you do actually need to read it to absorb information. With all due concern for Bexis’s feelings on the matter, reading the Blog every day can end up being a lower trial priority than witness prep sessions, sleep, and daily hygiene.
The Fiction Of Non-Preempted Pre-Market Design Defect Claims For Prescription Drugs
As we emerge from our fourth month-long trial in a little over two years, we are sure that we have missed some recent legal developments. As good as this Blog is as a source for what is going on in drug and device product liability litigation, you do actually need to read it to absorb information. With all due concern for Bexis’s feelings on the matter, reading the Blog every day can end up being a lower trial priority than witness prep sessions, sleep, and daily hygiene.
Preemption Ends Appeal Of Dyspeptic Supplement Case
We have often characterized preemption as one of the most powerful tools in product liability defense lawyers’ toolboxes. It also gets utilized effectively by lawyers defending against a variety of consumer fraud cases about FDA-regulated products.
Fifth Circuit FDA Decision Puzzles
Sometimes there are decisions that we begin to read with an expectation—perhaps based on a thumbnail from Bexis—that we will have a strong impression. Not surprisingly, the expected impression is usually negative. This was the case with Apter v. HHS, No. 22-40802, 2023 U.S. App. LEXIS 23401 (5th Cir. Sept. 1, 2023), which concerned an APA-based challenge to FDA public statements on the use of ivermectin to treat or prevent COVID-19 in humans.
District Court Misapplies Implied Preemption In Medication Abortion Case
Since before the Dobbs decision reversed decades of precedent on reproductive rights, we have been looking at the implications for drug and device manufacturers. See here and here. Our posts have, of course, followed the ins and outs of the notorious AHM (or Hippo) litigation as it makes its way up to the Supreme Court for an inevitable merits decision. See here , here, and here.
District Court Misapplies Implied Preemption In Medication Abortion Case
Since before the Dobbs decision reversed decades of precedent on reproductive rights, we have been looking at the implications for drug and device manufacturers. See here and here. Our posts have, of course, followed the ins and outs of the notorious AHM (or Hippo) litigation as it makes its way up to the Supreme Court for an inevitable merits decision. See here , here, and here.
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