Duty to Warn

News & Analysis as of

California Supreme Court Adopts the Sophisticated Intermediary Defense

In Webb v. Special Elec. Co., the California Supreme Court formally adopted the "sophisticated intermediary doctrine," which provides an additional defense that manufacturers and suppliers can assert against product liability...more

Alert: Law Firms May Have Duty To Warn Clients of Possible Insurance Coverage

A recent decision by a New York State Appellate Court has again reminded law firm risk managers of a possible law firm obligation to clients, especially those recently served with a lawsuit. The Court held that defense...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

The Renaissance of the Learned Intermediary Rule

Our recent “breaking news” post on West Virginia’s statutory restoration of the learned intermediary rule started us thinking about how every state now has pro-learned intermediary precedent. That’s a big change even from...more

Ninth Circuit Holds that Therapist was Fraudulently Joined

If Sunday night’s Academy Awards show has propelled you towards your nearest movie theater to catch up on the nominated flicks and winners, put The Revenant on the top of your list if you have not already seen it. Most of...more

Arizona Supreme Court Adopts Learned Intermediary Doctrine

The Arizona Supreme Court has issued an opinion adopting the learned intermediary doctrine in Arizona. The Supreme Court rejected the Arizona Court of Appeals’ earlier decision holding that the learned intermediary doctrine...more

Breaking News – Learned Intermediary Mandates Dismissal of 31 of 32 New Jersey Accutane Plaintiffs

The demise of the New Jersey Accutane litigation under the new mass tort judge continues apace. Today 31 more Accutane cases were dismissed for failure to establish warning causation under the learned intermediary rule. ...more

Maryland Expands the Potential for Manufacturer Liability in Failure to Warn Cases by Adopting an Exception to the Bare Metal...

Product manufacturers in Maryland have successfully argued for at least the last 16 years that, in terms of warnings, they are only responsible for products that they themselves have placed in the stream of commerce. In other...more

Manufacturing Defect, Misrepresentation and Concealment Claims Will Proceed in Mesh Case

In 2004, a Georgia resident was diagnosed with stress urinary incontinence. On July 16, 2004, she was implanted with a Mentor transobturator sling. In December 2010, she began experiencing pain in her thigh and saw an...more

New Draft Prop. 65 Warning Regulations: What Manufacturers and Suppliers Need to Know

On November 24, 2015, the Office of Environmental Health Hazard Assessment (“OEHHA”) issued proposed revisions to its January 15, 2015 draft Prop. 65 warning regulations. 27 CCR §§25600 et seq. The full text of the new draft...more

Product Liability Update - October 2015

Massachusetts Federal Court Holds Proof of Testing of Proposed Alternative Design Not Required in Design Defect Claim, Evidence Plaintiff Ignored Defendant’s Warnings Did Not Establish He Was Sole Proximate Cause of Injury on...more

Guest Post - First Contact - 3D Printing Meets the Learned Intermediary Rule

Here is a guest post on an interesting case. It's the first decision that we're aware of in which a 3D printed medical device (or any 3D printed product) has been the subject of litigation that involves product liability...more

Operating a Well in California May Automatically Put You At Risk for a Prop 65 Lawsuit

California's Proposition 65 is notorious for its duty-to-warn requirement, which states that a business must give a clear and reasonable warning prior to exposing people to certain levels of any listed chemical. The warning...more

Illinois Federal Court “Sanctions” Fraudulent Joinder of Pharmacies

We learned a new word the other day while watching TV: Autoantonym. An autoantonym is a word that means one thing, but it also means the opposite. The word is its own antonym, and it is remarkably easy to think of examples...more

Preemption (and Other Things) Defanging Depakote Claims

It wasn’t a complete win, but the summary judgment outcome in Rheinfrank v. Abbott Laboratories, Inc., ___ F. Supp.3d ___, 2015 WL 4743056 (S.D. Ohio Aug. 10, 2015), has to put a spring in the step of the defendants as they...more

Almost, but Not Quite: No Summary Judgement for Mentor on Two of Plaintiff’s ObTape Claims

We flew to Pittsburgh this week for depositions. From Philadelphia, it takes only about 40 minutes in the air to get to Pittsburgh. But there are only a few nonstops each day. With no other options, we booked a nonstop...more

No Duty for Device Manufacturer to Provide Separate Warnings to Hospital, According to Washington Court of Appeals

We admit it. We (and “we,” in this instance, should be read in the singular) are fans of certain social media, particularly the one that involves “posting” on a “wall” then sitting back and basking in the “likes.” We tend...more

The Revolution that Wasn’t: New Jersey’s Direct-To-Consumer Exception to the Learned Intermediary Doctrine

The learned intermediary doctrine – in which a manufacturer’s duty to warn runs to the physician, not to the patient – is one of the most potent weapons in the arsenal for a pharmaceutical or medical device manufacturer faced...more

Tex. Sup. Court Clarifies the Duties of a Non-Subscribing Employer in the Face of Known Dangers

Late last week, the Texas Supreme Court clarified duties of employers for premises defects and declared that they have multiple duties to invitees/employees who come onto their property facing known dangerous...more

The California Supreme Court - What to Expect in 2015

On Wednesday, April 29, 2015 at 11 a.m. PDT/2 p.m. EDT, Sedgwick attorneys Kirk Jenkins (Chicago), Hall Marston (Los Angeles) and Michael Walsh (Los Angeles) presented a webinar titled “The California Supreme Court: What to...more

California Appellate Court Affirms Judgment in Favor of Food Company on Claims of Lead Exposure

In an important victory for defendants doing business in California, the California Court of Appeal recently affirmed a trial court’s decision holding that the defendants did not violate Proposition 65, California’s toxics...more

In Childhood Sexual Abuse Case, California Appellate Court Finds Church has No Duty to Prevent Its Members from Harming Each Other

In Conti v. Watchtower Bible & Tract Society of New York, Inc. (filed 4/13/15, A136631), the California Court of Appeal, First District, reversed an award of $8 million in punitive damages, on the ground that a Jehovah’s...more

Product Liability Update - April 2015

In This Issue: - First Circuit Holds State Law Claims Against Drug Manufacturer for Allegedly Misleading Efficacy Representations in FDA-Approved Label Preempted by Food, Drug & Cosmetic Act Because Plaintiffs’...more

An Exemplary "Learned Intermediary" Win for Lilly and Byetta

A tip of the hat to our friend and former colleague Ken Zucker from Pepper Hamilton, who achieved this victory and sent us the decision. In the consolidated California Byetta litigation, 2015 WL 663211 (Cal. Super. Feb. 26,...more

Maryland Court Reconsiders a Company’s Duty to Warn of Asbestos-containing Replacement Parts It Did Not Manufacture or Otherwise...

Maryland’s Court of Special Appeals recently reconsidered the duty to warn of asbestos-containing replacement parts that the defendants did not manufacture or place in the stream of commerce in Philip Royce May v. Air &...more

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