Practice Tip: Consider Filing a Renewed Motion for Summary Judgment

A change in the controlling law: This can and does happen. The law changes. It's important to follow the development of the law at issue in your motion while your summary judgment motion is pending and even after it has been denied, and not just so that you can (as you often should) make the same or similar arguments at the close of the other side's evidence or after the trial. Months or even years after you have argued and lost a summary judgment motion, new controlling authority may make your motion a winner. This is particularly important in serial product liability litigation, where identical issues are being addressed in multiple courts over an extended period of time.

A change in the scope or application of regulatory law: This can also happen if your case is pending on a relatively slow track. An interesting illustrative example on this point is federal preemption in prescription drug product liability litigation. Recent FDA pronouncements and amicus briefs in key cases have made it clear that the FDA's position is that federal law regulating the approval and labeling for prescription drugs impliedly preempts state tort claims because such claims conflict with FDA regulatory approval of the drugs and their labeling. Summary judgment motions based on preemption in prescription drug cases that were denied prior to these pronouncements are now ripe for renewal because there has been a marked development in the FDA's interpretation of the preemptive scope of its own regulations.