Stephen McConnell, a partner at Reed Smith in Philadelphia, has this thoughtful post, titled “A Second Look at Eye-Drop Litigation,” on the Drug & Device Law blog. The post is a close look at the petition for en banc rehearing recently filed in Cottrell v. Alcon Labs.
Here’s the heart of it:
The main points in favor of revisiting the Third Circuit’s decision are that it is contrary to Finkelman v. National Football League, 810 F.3d 187 (3d Cir. 2016), it “radically expands Article III standing,” and that it directly conflicts with Eike v. Allergan, Inc., 850 F.3d 315 (7th Cir. 2017). Moreover, the plaintiff’s inherently speculative theory of injury in fact was rejected by federal courts in Massachusetts and Missouri. (When a court comes out with a more pro-plaintiffy position than courts in Massachusetts and Missouri, that’s really saying something.) That theory was also rejected by the district court in Cottrell. And then the Third Circuit reversed that rejection.
An interesting post about a big case.
Regular readers may recall that a couple weeks ago I posted here (“Blogging partner rampages … “) criticizing blog posts by the same lawyer. In his post today, McConnell has this to say about it:
First, we have been so unkind about the Third Circuit’s error in the Fosamax case that we managed to attract the attention of the excellent CA3 blog. In that blog, the author wondered whether our dissection of Fosamax was perhaps a bit more violent than necessary. The author also wondered whether we were coming close to accusing the court of bad faith. Yes to the former, but definitely No to the latter. As we told the CA3 blog, we took issue with what we saw as bad reasoning, but never-ever thought there was any bad faith. (The CA3 blog was generous enough to print our disclaimer. Thanks for that.) By and large, we are mighty proud of our home circuit. We know several of the judges, and every one of them is honorable, hard-working, and much smarter than we are. Sometimes we are not going to agree with the court’s decisions. Luckily for us we work in a profession and live in a country where debate and criticism are allowed.