2022 Feature Highlight: Hilton Argues Innovator Liability to the Nevada Supreme Court

It isn’t every day that judges rule from the bench—and it’s rarer still that they do so in pharmaceutical cases with novel issues. Jonathan Hilton made waves this year when he pulled off exactly that, scoring an upset in Nevada state court against top-ranked firm Kirkland & Ellis. Hilton bested big pharma defense star Cole Carter (a former clerk to Chief Justice John Roberts and Sixth Circuit Judge Jeffrey Sutton), and the judge ruled for Mr. Hilton’s client at the conclusion of oral argument. The trial court became the first in Nevada to accept an “innovator liability” theory.

The case has gone straight up to the Nevada Supreme Court. In GlaxoSmithKline, LLC v. Eighth Judicial District, Case No. 85501, the Court will decide whether personal jurisdiction exists over out-of-state pharmaceutical companies for so-called “innovator liability” torts. Innovator liability theories allow plaintiffs to hold brand-name drug manufacturers liable for problems even if the plaintiff only took the generic version of the drug. Hilton successfully argued in the trial court that this is only fair: federal law requires the generic to copy exactly whatever the brand-name manufacturer does, right down to the precise wording of the warning label.

“A Ridiculously Good Brief”

Hilton’s hard-hitting response brief drew attention within days. Nevada legal writing professor Joe Regalia recently unleashed a series of eleven tweets praising what he called a “ridiculously good brief.” The tweets break down the writing techniques Hilton used to keep the brief understandable and engaging—which is not always easy where civil procedure is involved.

Professor Regalia tweeted: “When imagining the best legal writers, you might think of big names at big firms. But small firms have powerhouses, too. Case in point: A ridiculously good brief penned by a plaintiff’s attorney at the boutique Hilton Parker LLC.”

GlaxoSmithKline, LLC’s reply brief is due this month. In the meantime, Hilton is busy prepping for oral argument with an eye toward another knockout.