Products Liability Personal Injury

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New York Reaffirms General Acceptance Standard in Frye for Scientific and Technical Issues

In a recent opinion handed down by New York’s highest state court – the Court of Appeals –Sean R. v. BMW of N. Am., LLC, 2016 N.Y. Slip. Op. 01000 (Feb. 2016) reaffirmed New York’s continued adherence to Frye’s “general...more

Compensating “Disgust”: Psychoanalyzing Emotional Distress Claims Involving Food Products

You’re a sheriff’s deputy and you’re hungry. You stop at the local Burger King drive-thru and order a Whopper with cheese. You often eat five meals a day—frequently at fast food restaurants—because you work night shifts. ...more

New York’s Highest Court Issues a Noteworthy Decision, Rejecting “Pro Rata” Allocation in the Asbestos Bodily-Injury Context

On May 3, the New York Court of Appeals unanimously held that an “all-sums” method of allocation should be used to apportion liability among excess insurers based on the policy language at issue in the case. Contrary to...more

The Class Action Chronicle - Spring 2016

This is the 11th edition of The Class Action Chronicle, a quarterly publication that provides an analysis of recent class action trends, along with a summary of class certification and Class Action Fairness Act rulings issued...more

Sophisticated User Defense Does Not Extend to Salesman

Richard Moran III v. Foster Wheeler Energy Corporation - Court of Appeal, Second Appellate District (April 13, 2016) - In 2008, the California Supreme Court unanimously held that the “sophisticated user” defense...more

Time Limitations on Lawsuits — The clock is ticking…

Did you know that if you have been hurt or injured due to negligence or a defective product, there is a limited time within which you may bring your claim? All states, including the State of Florida, have rules called...more

Smooth Operators: Seventh Circuit Untangles Objections and Affirms Settlement of Hair Product Class

The Seventh Circuit Court of Appeals affirmed a class settlement over objection in a case involving a hair-smoothing product (“the Smoothing Kit”) that allegedly destroyed users’ hair and burned their scalps. Plaintiffs sued...more

Bad Bullets Brings Sixth Circuit in Line with Siblings: The Commercial Activity Exception to the Foreign Sovereign Immunities Act

On March 7, 2016, the Sixth Circuit Court of Appeals joined its sibling circuits by affirming a ruling from the Southern District of Ohio, which found that the design and manufacture of a product is a commercial activity...more

Federal Preemption Claims: Clear Evidence and an Unclear Standard

Last week, a federal court in Utah granted Aventis Inc.’s motion for summary judgment based on federal preemption of failure-to-warn claims. Cerveny v. Aventis, Inc., 2016 U.S. Dist. LEXIS 34182 (D. Utah Mar. 16, 2016). The...more

$72 Million Awarded in Johnson & Johnson Baby Powder Case

More than 1,200 pending lawsuits against Johnson & Johnson involving the company’s iconic baby powder and other products received a big boost when a Missouri jury awarded the family of an ovarian cancer victim $72 million in...more

Massachusetts Court Holds Insured Contract Does Not Compel a Duty to Defend

In its recent decision in Jiminy Peak Mountain Resort, LLC v. Wiegand Sports, 2016 U.S. Dist. LEXIS 34209 (D. Mass. Mar. 16, 2016), the United States District Court for the District of Massachusetts had occasion to consider...more

Hoverboards and Head Injuries

Over the past several years, hoverboards have become extremely popular mobile devices, especially with people between 20 and 30 years old. In 2015, these self-balancing scooters with motors powered by lithium-ion batteries...more

Essure Has Caused 303 Fetal Deaths, Independent Analysis

A gross discrepancy in the number of fetal deaths attributed to the birth control device Essure has prompted the U.S. Food and Drug Administration to analyze the data and decide whether to change the way the product is...more

New York Court of Appeals Rejects Litigation Science under Frye Standard

Put quotes around the phrase “litigation science” and Google it. Go ahead, we’ll wait. . . . . What did you find? Not good, right. You found a lot. Too much. The first Google page alone shows how controversial this...more

$11 Million Verdict Against Gynecare Prolift Pelvic Floor Repair System Under Appeal

Ethicon Women’s Health & Urology, maker of the Gynecare Prolift Pelvic Floor Repair System, is appealing an $11 million verdict awarded to a South Dakota women injured by the defective mesh implant....more

Maker of dirty medical device hit with $623 million in penalties for kickbacks

Can the sleaze get any worse with the maker of a dirty medical device that investigators say sickened dozens and played a role in killing 21? Sadly, it can. Federal prosecutors say that the maker of a flexible scope used in...more

Blog: Court Of Appeal Considers Application Of Fairchild Test In Asbestos-Induced Lung Cancer Cases

In Heneghan v Manchester Dry Docks Ltd & Ors [2016] EWCA Civ 86, the Court of Appeal considered whether the Fairchild exception should be applied in a case of multiple exposures to asbestos leading to lung cancer. Like...more

Liability for Brand Drug Manufacturers All But Clear

Earlier this month, a federal district court in Illinois denied GlaxoSmithKline’s (GSK) renewed summary judgment motion based on federal preemption of failure-to-warn claims in an opinion setting tough standards for brand...more

Legal Issues Raised by the Driverless Vehicle Revolution – PART 2

Part 1 of this article, published in the December 2015 Business Litigation Report, described emerging driverless vehicle technology and related patent and patent ligation issues. Part 2 continues this discussion with the...more

Product Liability Update: January 2016

Supreme Court Holds Defendant Cannot Moot Putative Class Action by Making Unaccepted Offer of Judgment for Complete Relief to Representative Plaintiff - In Campbell-Ewald Co. v. Gomez, No. 14-857, 2016 U.S. LEXIS 846 (S....more

When Mechanical Failure is to Fault

Automobiles have thousands of parts. Each of these parts operate in concert to propel the vehicle down the road. When these parts fail they can make a vehicle unsafe to drive. Brake failures, tire blowouts, malfunctioning...more

The Fairness in Class Action Litigation Act of 2016 – What It Can Mean For Consumer Product Manufacturers

Last year, the chairman of the House Judiciary Committee, Bob Goodlatte (R. Va.), proposed the Fairness in Class Action Litigation Act of 2015-2016 (H.R. 1927). The Act passed the House last week on January 8, 2016, and is...more

The New One-Two Is Back

A couple of years ago the one-two punch was all the rage in prescription drug cases. “One-two punch” has been our moniker for decisions where plaintiffs ingested only generic drugs, but tried to hedge their bets, given the...more

Lawsuit “Immunity” for the Gun Industry and What the PLCAA Really Says

Do gun manufacturers really have blanket immunity from lawsuits? No, not even close. The 2016 campaign season has brought a big dose of gun policy debate, and some candidates have claimed that gun manufacturers have...more

Ignition Switch Flaw Linked to Hundreds of Personal Injuries, Deaths

A recall of more than 2.6 million vehicles by auto manufacturer General Motors has set off intense scrutiny of the auto giant’s safety practices. An investigation into the recall, which addressed faulty ignition switches in...more

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