Civil Procedure Products Liability

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Punitive Damages and an Essential Jury Instruction

In one of our recent posts we touched on punitive damages in the context of one of the Pinnacle Hip bellwether trials. In this post, we address another interesting aspect of punitive damages: whether they can be used to...more

Judge Kicks Benicar Claims

Benicar is used to treat high blood pressure. In June 2015, numerous plaintiffs sued the manufacturer of Benicar, Daiichi Sankyo, Inc. and Forest Laboratories LLC in the St. Louis Circuit Court. Plaintiffs alleged injuries...more

What Is “Product Liability”?

We’re serious – we’re not planning to give a flip answer like “an extortion racket.” No, it’s more like law school, where a first-year contracts professor began with the question “What is Chicken?” (Hint – that’s discussed...more

Fourth Circuit Vigorously Applies Daubert

Last week three of our posts dealt with Daubert issues. That was not intentional. Chalk it up to coincidence. Or was it? We are not especially superstitious, but maybe the passing last week of the great “Professor” Irwin...more

Missouri Court of Appeals Holds Ingredient List Label on Product Not an Absolute Defense to Claim for Deceptive Merchandising...

Murphy v. Stonewall Kitchen, LLC, No. 104072 (November 8, 2016)- The Missouri Court of Appeals, Eastern District, reversed a trial court’s order dismissing an action on the grounds that an ingredient list label was a...more

Limits to Admitting Evidence of Other Accidents In A Products Case

The United States District Court for the District of Maryland recently filed an opinion in a products liability case clarifying the admissibility of certain types of evidence common to product liability cases. Callahan v....more

FDA-Approved Labeling Does Not Equal Medical Standard Of Care

We’ve been defending the ability of physicians to engage in off-label use ever since the Bone Screw litigation of the 1990s. Buckman Co. v. Plaintiffs Legal Committee, where the United States Supreme Court affirmed that...more

The Viability of the “Primary Jurisdiction Doctrine” Defense and Other Ways to Stem the Tide of Food & Beverage Class Actions

As our readers are well aware, in the past decade, food and beverage manufacturers have faced an unrelenting onslaught of putative class actions challenging allegedly false or misleading labels. In the January 2016 issue, we...more

Nebraska Daubert Order Finds Expert a Mile Wide at the Mouth, But Only Six Inches Deep

A case from Douglas County, Nebraska, caught our eye this week for a couple of reasons. It’s a great Daubert order in an Accutane case in Nebraska state court. In addition to that, this blogger’s mother grew up on a farm in...more

Unreliable Expert Causation Evidence Ends Birth Defect Case

We have posted several times in the last few years (like here, here, here, and here) about cases alleging birth defects from maternal SSRI use during pregnancy. Perhaps because of the inherent sympathy for the plaintiff...more

Product Liability Update: January 2017

Massachusetts Appeals Court Holds Birth Control Patch Manufacturer Had Duty to Warn Patient Directly But Packet Insert Adequately Warned of Greater Risk of Blood Clots As Compared to Birth Control Pill; Design Defect Claim...more

Update on Bell Case Pending in Eastern District of Louisiana

This post provides an update on the status of Bell v. Foster Wheeler Energy Corp., pending in the United States District Court for the Eastern District of Louisiana following a previous blog post examining the court’s order...more

Judge Neil Gorsuch, the Supreme Court and Product Liability Litigation

What does the nomination of Judge Neil Gorsuch for the U.S. Supreme Court mean for product liability litigation? Judge Gorsuch may be similar enough to the late Justice Antonin Scalia as to first principles that near-term...more

Plaintiffs’ Fraudulent Joinder Tactic Results in Dismissal

Defendants successfully argued “fraudulent joinder” in Bahalim v. Ferring Pharmaceuticals, Inc., winning dismissal of the case in its entirety. The case was decided on Plaintiffs’ motion to remand and Defendants’ motions to...more

Gorsuch Looks Pretty Good On Preemption

When we heard about Judge Neil Gorsuch being nominated for the United States Supreme Court, our first move was to enter his name in Westlaw along with the term “preemption.” That’s the constitutional doctrine most important...more

Spectrum Facing Consumer Fraud Lawsuit Over Wireless Internet Speed Claim Practices

The Office of the Attorney General for the State of New York (“NYAG”) has filed a consumer fraud complaint against Charter Communications, Inc. and Spectrum Management Holding Company, LLC (“Spectrum”) for deceptive practices...more

Just What the Doctor Ordered: Package Insert Does not Establish Standard of Medical Care

Like most Americans, we like our doctor. We like doctors in general. We are not looking to start another song battle with our friends over at the Abnormal Use blog, like when we competed to name as many law songs as...more

Why The Supreme Court Must Revisit Personal Jurisdiction

In its most recent decisions on personal jurisdiction, the U.S. Supreme Court has reiterated the distinction between general personal jurisdiction on the one hand and specific personal jurisdiction on the other. As to...more

Ninth Circuit Affirms Denial of Samsung’s Motion to Compel Arbitration Based on In-Box Warranty Brochure

On January 19, 2017, the Ninth Circuit Court of Appeals affirmed a district court’s denial of Samsung’s motion to compel arbitration by the named plaintiff in a class action alleging that Samsung made misrepresentations as to...more

Hip Case Breaks the Right Way in New York

A recent case in the Southern District of New York debunks two myths that we see all the time. Myth number one: A medical device is defective if it fails. Myth number two: A plaintiff can prove causation on a...more

Washington Supreme Court Rejects Implied Federal Field Preemption of Aviation Product Liability Claim

In a unanimous decision, the Washington Supreme Court held that implied field preemption under federal law does not bar state-law product liability claims. The decision in Estate of Becker v. Avco Corporation (Jan. 26, 2017),...more

5 Hour Energy Deceptive Practices Lawsuit Survives Challenge

A federal court in the Central District of California has denied a motion filed by the manufacturers and marketers of the dietary supplement, 5 Hour Energy, which would have dismissed a putative nationwide deceptive practices...more

New Jersey Supreme Court Adopts the Substantial-Interest Test for Statute of Limitations Choice of Law

On January 24, the New Jersey Supreme Court adopted the substantial-interest test to determine choice-of-law questions in the application of statutes of limitations. New Jersey’s statute of limitations applies if (1) New...more

Update: US Supreme Court Grants Certiorari on California Personal Jurisdiction Case

Nation’s highest court agrees to hear appeal of a California Supreme Court case with far-reaching implications for personal jurisdiction. In the recently published opinion in Bristol-Myers Squibb Co. v. Superior Court...more

New Jersey Supreme Court Turns Back The Clock on Statute of Limitations

We thought we understood statutes of limitations and choice-of-law rules in New Jersey. Until yesterday. That was when we read the New Jersey Supreme Court’s opinion in McCarrell v. Hoffmann-La Roche, Inc., No. 076524, 2017...more

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