Courts are relegating failure-to-warn claims, the decades-old staple of medical products liability, to the trash bin of tort jurisprudence. But a new and more potent approach is poised to emerge: the doctrine of parallel claims. Lawyers need to know what these claims involve, where they came from, why they emerged and which courts are making the law.
Mass tort litigation involving products approved by the Food and Drug Administration (FDA) began in the 1980s. Since then, the defensive doctrine of federal preemption has emerged in fits and starts. Since the mid-1990s, the doctrine of federal preemption gradually has swung the pendulum toward dismissal of claims. This relegates claimants to the few venues where jurists, flummoxed by plaintiffs’ lack of a remedy, forged a tenuous path forward.
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