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BT Product Liability - News and Trends in Product Liability Litigation
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20 Nov 2017 CPSC Issues Final Rule on Chemicals in Plastic Children’s Toys and Products

  The U.S. Consumer Product Safety Commission (CPSC) recently issued its final rule concerning children’s toys and child care products containing certain chemicals in plastic. The final rule prohibits eight specific phthalates in children’s toys (defined as a consumer product designed or intended to be played with by a child 12 years’ old or younger) and child care articles (defined as a consumer product designed or intended to facilities sleep or feeding of children three years old or younger or to help children with sucking…

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31 Jul 2017 Eighth Circuit Affirms Exclusion of Expert Who Contradicted His Prior Testimony

 Authored by Jan Carroll, Joseph G. Eaton, Oni Harton   The U.S. Court of Appeals for the Eighth Circuit recently declared that experts must, at the least, address obvious alternate causes and avoid contradicting themselves when submitting affidavits long after their depositions have been taken. The Eighth Circuit affirmed the entry of summary judgment for DePuy Orthopaedics, Inc., in a product liability case involving a fractured hip stem. The court found that the plaintiff’s expert’s defect and causation testimony was properly excluded by the U.S. District Court for…

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13 Jul 2017 Post-BMS, Are Clinical Trial Sites the New Hook for Hailing Out-of-State Pharmaceutical Defendants into Court?

  The ink has only recently dried on the U.S. Supreme Court’s June 19 personal jurisdiction decision in Bristol-Meyers Squibb Co. v. Superior Court of California, and already, we’re seeing courts and litigants grapple with the reach of the court’s holding. The U.S. District Court for the Northern District of California’s recent decision in Dubose v. Bristol-Myers-Squibb Co. et al.—another case in California brought by an out-of-state plaintiff—suggests that the results may be all over the map.   In Dubose, the plaintiff alleged that defendants…

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20 Jun 2017 High Court Limits Litigation Forum Shopping

  Product liability legal practitioners have been anticipating the U.S. Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. – (June 19, 2017). Announced on Monday, the 8-1 decision did not disappoint, firmly curtailing the ability of out-of-state residents to forum shop for a favorable jurisdiction in mass tort litigation. In the decision, the Court held that continuous activity in a state, alone, does not create jurisdiction; instead, there must be a link between the forum and an individual lawsuit…

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15 Jun 2017 Missouri Marches Toward Daubert

  Missouri, declared one of the nation’s “Judicial Hellholes®” by the American Tort Reform Foundation, soon will join the federal courts and 39 other states in applying the Daubert standard for the admissibility of expert testimony after enacting H.B. 153. Under Missouri’s current statute, expert opinion testimony is deemed admissible if the expert was duly qualified and the facts or data were of the type “reasonably relied upon by experts in the field.”   It is widely believed that this standard, along with weak venue…

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02 Jun 2017 ‘Non-Precedential’ Unpublished Decisions in Daubert and Frye Cases, Often Silenced

  State and federal trial court judges repeatedly review evidentiary challenges to experts’ causation opinions in toxic tort personal injury cases. They critically examine voluminous records full of scientific studies and expert testimony in the areas of toxicology, genetics, epidemiology, and industrial hygiene. In the end, the judges repeatedly produce well-reasoned, detailed decisions under the Daubert (applicable in all federal and most state courts) or Frye (applicable in some states) standards for the admissibility of scientific evidence.   Many trial court opinions on expert testimony,…

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26 May 2017 Planting the Seed: Three Takeaways from Barnes & Thornburg’s Ag & Food Conference

  On May 23, Barnes & Thornburg held its annual “Planting the Seed” conference, which focused on legal and regulatory concerns facing companies in the agriculture, animal health and food processing industries. This year’s conference featured speakers from Crop Life America, Elanco Animal Health, Dow AgroSciences, the Grocery Manufacturers Association, Colorado State University, Purdue University, and the National Agriculture Law Center at the University of Arkansas. More than 100 clients and companies attended the conference hosted in our Indianapolis office.   I participated as a…

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10 May 2017 A Win for Corporate Defendants in the Fight to Limit Personal Jurisdiction

  An opinion out of Missouri offers optimism that courts are beginning to limit personal jurisdiction over a non-resident defendant. In State ex rel. Norfolk Southern Railway Co. v. Dolan, Russell Parker, an Indiana resident, filed suit in St. Louis County, Missouri, against his employer, Norfolk Southern, under the Federal Employer’s Liability Act. Parker, alleged injuries sustained while working in Indiana for Norfolk Southern, a Virginia-based corporation.   The Missouri Supreme Court held that Missouri lacked specific and general personal jurisdiction over Norfolk Southern. As…

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27 Apr 2017 Beware Your Non-Reporting Expert

  Authored by Joseph G. Eaton and J.T. Larson   A federal district court decision could potentially impact how attorneys interact with their non-reporting expert witnesses.   The case, Luminara Worldwide, LLC v. RAZ Imports, Inc., No. 15-CV-03028, 2016 WL 6774231 (D. Minn. Nov. 15, 2016), involved a patent dispute before the U.S. District Court for the District of Minnesota. The central issues in a discovery battle were the applicability of the attorney-client privilege and the scope of that privilege with respect to a non-reporting,…

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18 Apr 2017 3 Questions Raised by Decision Expanding Failure to Warn Manufacturer Liability

    In Taylor v. Intuitive Surgical, Inc., the Washington Supreme Court held that a patient-plaintiff may now recover for a medical device manufacturer’s failure to provide adequate warning to a purchasing hospital—despite the manufacturer’s provision of adequate warning to the patient-plaintiff’s treating physician. This post addresses three key questions:   How did the court come to this decision?   Taylor relies on three unobjectionable steps to justify its bold holding. First, under the Washington Product Liability Act (WPLA), manufacturers have a statutory duty to…

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