Products Liability Civil Procedure

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False Labeling Lawsuits Get Hung Up On Faulty Damages Models

Food companies have several significant defenses to consumer fraud class actions over product labeling, say attorneys Joshua Briones and Crystal Lopez, and analyst Grace Rosales. The authors focus on damages, an area in which...more

Ninth Circuit and “Ascertainability”: No “Administratively Feasible” Method of Identifying Class Members Required

On January 3, 2017, the Ninth Circuit affirmed a district court’s decision to grant class certification, finding that, at the class certification stage, Rule 23 does not require plaintiffs to demonstrate that there is an...more

Guest Post – MDL Court: Preemption Leaves No “Glimmer of Hope” for Labeling Claims Against a Pharmacy

What follows is a post authored by Jaclyn Setili, a Reed Smith associate. She is discussing what we believe is the first extension of Mensing/Bartlett preemption to claims involving pharmacies – something we’ve previously...more

Sweeping Connecticut Supreme Court Decision Refines Existing Tort Law

In arguably the most important Connecticut tort-law decision in decades, the Connecticut Supreme Court in Bifolck v. Philip Morris, Inc., --- A.3d ---, 2016 WL 7509118 (Conn. Dec. 29, 2016), declined to adopt the approach of...more

Supreme Court of Missouri Holds No Waiver of Work Product Privilege When Party Rescinds Designation of Expert Witness Without...

State ex rel. Jason H. Malashock v. The Honorable Michael T. Jamison, SC 95606 (November 1, 2016) The Supreme Court of Missouri reversed a trial court’s order permitting the deposition of a plaintiff expert witness on...more

“Regulatory Causation” Roundup

Last week’s Westlaw search (that’s one way we find the cases we discuss in the Blog) brought a blast from the past – a case almost three years old showed up discussing – and rejecting – expert testimony about so-called...more

Ninth Circuit Revives “All Natural” Label Class Action, but Affirms Decertification of Damages Class

In an unpublished decision that is significant for both shoppers and consumer food companies, the Ninth Circuit recently reversed a district court’s ruling that the label “All Natural Fruit” is not likely to deceive...more

IADC Campaigns for Industry Custom Evidence in California's Design Defect Risk-Benefit Analysis

Recently, the International Association of Defense Counsel (“IADC”) filed an amicus brief in support of Toyota in William Jae Kim v. Toyota Motor Corporation (No. S232754). Kim v. Toyota is currently on appeal before the...more

California Court Denies Stay of Consumer Class Action Challenging “Natural Cheese”

On December 6, 2016, United States District Judge John A. Kronstadt for the Central District of California denied a motion to stay a class action alleging violations of the UCL, FAL, and CLRA against Kraft Foods Group, Inc....more

Lipitor MDL Court Grants Pfizer’s Omnibus Summary Judgment Motion: No Evidence of Causation

For those of us who spend large chunks of our professional lives in mass tort MDLs, expressions like “settlement inventory” are ubiquitous. It is too easy to lose sight of the fact that these expressions put the rabbit in the...more

"The Class Action Chronicle - Winter 2016"

This is the 14th 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

Eleventh Circuit Upholds Economic Loss Rule in Product Liability Lawsuits

The Economic Loss Rule is a doctrine of law that prohibits a product liability claim being brought against a manufacturer for a defective product that only destroys itself, without harm to other property or to a person. In...more

Lessons Emerging from Pinnacle Hip Bellwether Trials

In a staggering verdict, a Texas jury recently awarded over $1 billion against Johnson & Johnson (“J&J”) and its subsidiary DePuy Orthopaedics Inc. (“DePuy”) (collectively referred to as “Defendants”) to six California...more

Briseno v. ConAgra Foods, Inc.: Ninth Circuit Rules That There Need Not Be An Administratively Feasible Way To Identify Class...

In Briseno v. ConAgra Foods, Inc., an opinion issued on January 3, 2017, the United States Court of Appeals for the Ninth Circuit held that Federal Rule of Civil Procedure 23 does not require plaintiffs challenging the...more

SDNY Applies Preemption in Favor of Branded Drug

On January 3, 2017, we commenced the dreary process of taking down the Christmas decorations. The German nutcrackers slid back into their cartons. Stockings marched from the mantle into plastic storage containers. We picked...more

Guest Post – Failure to Warn Claim Dead on Arrival Without Testimony from Prescribing Physician

This is a guest post from Michael Salimbene, an associate at Reed Smith. It’s about learned intermediary causation, and the need for prescriber testimony. Not infrequently, in mass torts with lots of solicited plaintiffs,...more

The Peaks – The Ten Best Prescription Drug/Medical Device Decisions of 2016

Today we’re going peak bagging – no, not to the Canadian Rockies or Patagonia (we leave that to Bexis) – for the high points in this year’s drug/medical device product liability jurisprudence. Last week, we visited the...more

First Circuit Affirms Dismissal of False Claims Act Case

Happy birthday to Stan Lee, the main man behind Marvel Comics. He wrote the stories for The Amazing Spider Man which, when we were 10 years old, we read with a good deal more enthusiasm than we presently feel when...more

Fraud on the FDA Doesn’t Fly Under the FCA Either

Ever since Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), held that state-law claims alleging fraud on the FDA are preempted, plaintiffs have been attempting to find some other way of bringing claims that...more

Alter Ego and Agency – A Different Spin on Jurisdiction

This is the second time in two years that we have written the Drug and Device Law Christmas blogpost. Last year, your dedicated blogger posted on Christmas Day a nice little piece on innovator liability that we are sure you...more

Slack-fill lawsuits filling up state court dockets

The uptick in “slack-fill” litigation that we have previously covered in this blog shows no signs of abating — and a spate of recent filings in Missouri state court show that the trend may be expanding....more

The Pits – The Worst Prescription Drug/Medical Device Decisions Of 2016

The “pits of hell,” “black as a pit,” a “bad feeling in the pit of my stomach” – that’s how we feel about 2016’s bottom ten decisions of the year arising from prescription medical product liability litigation. This year’s...more

Is the FSMA a plaintiff’s lawyer’s dream and the food industry’s nightmare?

The Food Safety Modernization Act (FSMA) became law in 2011, signaling a sea change in U.S. food safety regulation and making prevention the cornerstone of safety measures. To achieve its lofty goals, while providing time for...more

Government Contractor Defense Applies to Commercial Product Supplier

A California appellate court recently affirmed a decision granting summary judgment in favor of an asbestos supplier under the government contractor defense. Kase v. Metaclad Insulation Corp., 2016 Cal. App. LEXIS 1025 (Cal....more

D.C. appellate court strikes another nail in the coffin for the Frye test

In a striking decision that has the civil litigation bar abuzz about its implications, the D.C. court that first introduced us to the Frye test has now overturned it in favor of Daubert. What distinguishes the court’s...more

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