Products Liability Updates

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Hot Pocket: Samsung Galaxy Note 7 Recall Highlights Risk of Lithium Batteries During Air Transportation

Air transportation of lithium ion batteries recently garnered significant attention due to events following reports of the Samsung Galaxy Note 7’s batteries overheating, catching fire, and even exploding. See Samsung Recalls...more

CPSC Recall Snapshot: October 2016

Welcome to the October edition of the Alston & Bird CPSC Recall Snapshot. Earlier this month, CPSC Chairman Elliot Kaye took the uncommon step of threatening furniture makers with mandatory federal rules to address...more

S.D. Cal. Shows No Love for Aphrodisiac Class Certification

A class action claiming that a diet supplement was falsely advertised as being an aphrodisiac cries out for bad jokes and silly puns. Are we above all that? Er… sure. The supplement is called IntenseX. (Get it? Why don’t...more

"The Class Action Chronicle - Fall 2016"

This is the 13th 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

Homeopathic Teething Products Linked to Child Deaths, FDA Says

Belladonna is blamed for the deaths of 10 babies. The parents treated their teething phase with homeopathic teething products (gels and tablets) containing the natural substance. Another name for belladona is deadly...more

CSST Found to Be Ordinary Building Material under Virginia’s Statute of Repose – For a Second Time

In a recent decision, the Circuit Court for Spotsylvania County, Virginia, found that OmegaFlex, a manufacturer of corrugated stainless steel tubing (CSST), which is used in residential gas supply systems, was entitled to the...more

FDA Announces Initiative to Redefine “Healthy” Claim for Food Labeling

The U.S. Food and Drug Administration (“FDA”) announced in September that it is considering how to redefine the term “healthy” as a nutrient content claim for the labeling of human food products. The FDA issued a guidance...more

When the TTB says no but the Pa.L.C.B. says yes: When do you need a COLA for off-premises growler sales?

Simply put, if you are a Pennsylvania brewery and looking to sell your products in growlers or crowlers for off-premises consumption, the answer to the question posed above is ALWAYS! Recently, we have been approached by...more

Landmark Reform of Federal Chemicals Law Will Significantly Impact Chemical Manufacturers and Users

On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety Act for the 21st Century Act (“Lautenberg Act”), a sweeping and historic overhaul of our nation’s primary chemical management law, the...more

Bootstrapped Claim Against the FDA Gets the Boot

We’re pleased to report the demise of a plaintiff’s firm’s attempt to punish the FDA for rejecting the firm’s attempt to force the agency to create evidence helpful to plaintiffs in litigation. The ploy began in 2012, when “a...more

Proposed New FDA Labeling Rules Would Result in Increased Generic Drug Product Liability Claims

After several years of delay, FDA announced this summer that it expects to publish new rules in April 2017 that will permit generic drug companies to make unilateral changes to their warning labels, even if the brand does...more

Homeopathic Products Under Renewed Scrutiny Following FDA’s Consumer Warnings

Last week, following up on a more general warning issued on September 30, FDA alerted the public that it had received at least 10 reports of baby deaths associated with the use of homeopathic teething products, as well as...more

IVC Filter Litigation – Judge says no to Protective Order

Plaintiffs in a Multi District Litigation (“MDL”) filed complaints against Cook Medical Inc. (“Cook”) and alleges that Cook knowingly presented false information regarding the safety profile of its IVC filters to physician...more

Update on Prosecution for Truthful Off-Label Promotion

We have been following issues related to the interplay of off-label use, manufacturer statements about off-label use, the First Amendment, and FDA enforcement for a long time. (Like here, here, and here, among many posts.) ...more

An Emerging Structure of ADR in Mass Torts and MDLs

The official statistics provided by the Judicial Panel on Multidistrict Litigation in recent years count Products Liability as nearly one quarter of all pending multidistrict litigations (MDLs), making it the largest category...more

The Note 7 – Taking Samsung Down in Flames?

I own a Samsung phone. Thankfully not a Note 7. My prior phone was a Samsung as well. Will my next one be a Samsung?...more

WARNING: Prop 65 Can Expose Product Manufacturers to Increased Litigation in California

California's Proposition 65 ("Prop 65") requires product manufacturers and sellers to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone in California to a chemical listed by the...more

Another Champion for Proportionality in Discovery

For the second time within a month, an MDL court has rejected wide-ranging and potentially abusive discovery on the basis that the requests were out of proportion to the needs of the case. This is a welcome development. We...more

Proposition 65: New regulations for "clear and reasonable" warnings

Remember when the warning above was “clear and reasonable” for purposes of Proposition 65? Soon that will no longer be true. Following a two-year rulemaking, the California Office of Environmental Health Hazard Assessment...more

The Learned Intermediary Rule in Consumer Protection Claims

We recently posted about a new California decision that was notable, in part, because it applied the learned intermediary rule to often-asserted (and equally often abused) California consumer protection statutes. See Andren...more

Big Pharma, undeterred, racks up a half-billion dollars in regulator penalties

Big Pharma’s dubious hype of its sometimes risky products marched on last week, with the industry racking up a half-billion in regulator penalties and settlements but no seeming end to its questionable strategies and...more

The End of the Road for Pro Se Neurontin Plaintiff with No Evidence of Causation

This past weekend, we paid a return visit to Cleveland, the home of our best law school friend, who braved the (figurative) waters of New Haven with us so many years ago. In deference to the Drug and Device Law Traveling...more

Creating and Maximizing Enforceable Settlements

Settling a case may be the culmination of years of litigation or a strategic move at the outset to avoid litigation costs. Many times, settlement occurs at some point in between. Regardless of when the settlement occurs, it’s...more

CPSC Sends Another Shot Across the Bow of Retailers with $3.8 Million Civil Penalty Against Best Buy for the Sale of Recalled...

On Tuesday, the U.S. Consumer Product Safety Commission (CPSC) announced that Best Buy Co., Inc. entered into a settlement agreement with the CPSC to pay a $3.8 million civil penalty to resolve allegations that it “knowingly...more

Child Strollers Recalled Due to Safety Defect

CPSC Recalls Safety 1st Brand Strollers Because of Child Injury Risk - Is the stroller that you currently use safe? According to a recent article from ABC News, around 20,000 strollers have been recalled due to a “defect...more

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