When we ranked Trejo v. Johnson & Johnson, 220 Cal. Rptr. 3d 127 (Cal. App. 2017), as the second best drug or medical device case of 2017, we celebrated the opinion as the first to rule that federal law preempted a design defect claim involving an over-the-counter drug. We did not expect to be writing about the case again more than seven years later. And, we especially did not expect to be reporting that the case—which resulted the first time around in a $55 million verdict—was dismissed with prejudice because the plaintiff did not bring it to retrial on remand before time ran out. That is exactly what happened, and the Court of Appeal recently affirmed that result in Trejo v. Johnson & Johnson Consumer, Inc., No. B324219, 2025 WL 2474870 (Cal. Ct. App. Aug. 28, 2025) (unpublished).
You see, when a judgment in California is reversed on appeal and remanded for a new trial, the plaintiff has three years to get it again to trial. Cal. Civ. Proc. Code § 583.320. In Trejo, the design claims were gone, but this plaintiff still had non-preempted claims for failure to warn—and he had three years to take his second bite at the jury apple. Deadlines to get cases to trial, both before and after appeal, are well established in California, and every judge, court clerk, and litigator in the state is aware that the deadlines mean business. Dockets are managed, schedules are adjusted, deals are made, and hoops are jumped through to ensure that the allotted time does not expire.
All of this was true in Trejo, yet the plaintiff still managed to miss the deadline—in a case involving...
