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BT Product Liability - News and Trends in Product Liability Litigation
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03 Apr 2017 Warning: California Takes Aim at Food and Beverage Industry

  In recent weeks, California legislators have introduced two bills that would require new warning labels for sugary drinks and food products with artificial ingredients. Like California’s famed Proposition 65, which requires warnings for any products containing any one of approximately 800 chemicals on the Prop 65 list, enactment of either of these bills would likely push many food and beverage makers to reconsider their use of various ingredients not just in California, but nationwide.   SB 300 — The Sugar-Sweetened Beverage Health Warning Act…

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13 Mar 2017 Beware the Long Tail of Successor Liability: Tips From a Recent Client Victory

  Toxic exposure claims involving asbestos, benzene, silica and many other substances present so-called “long tail” risks. Consider this: A recently diagnosed illness is alleged to have been caused by exposures that occurred years or even decades ago. As a result of corporate transactions during that long period of time, a company may find itself named as a defendant in such a case on the grounds of successor liability for products made or sold by an earlier company that no longer exists. We’ve outlined several…

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10 Mar 2017 Is Daubert Dead in Florida?

  Since 2013, Florida state courts have applied the Daubert standard for the admissibility of expert testimony following the Florida Legislature’s rejection of the longstanding Frye and “pure opinion” standard.  Through amendments to §§ 90.702 and 90.704, Fla. Stat., the “Daubert Amendment,” Florida joined more than two-thirds of states and the federal courts in applying the Daubert . . . or did it?   Under Florida’s Constitution, the Florida Supreme Court has the ultimate authority in adopting a given evidentiary standard.  Thus, the 2013 legislative…

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28 Feb 2017 What Judge Gorsuch as Associate Supreme Court Justice Could Mean for Product Liability Practitioners

  On Jan. 31, President Trump nominated Judge Neil Gorsuch to fill Justice Antonin Scalia’s vacant seat on the U.S. Supreme Court. Gorsuch has served on the U.S. Court of Appeals for the Tenth Circuit since 2006 and was appointed by President George W. Bush. Product liability litigators and commentators have been looking at what Justice Gorsuch could mean for our work, specifically diving into Gorsuch’s opinions on federal preemption and the admissibility of expert testimony. Here’s a sampling.   Express Preemption   On the…

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22 Feb 2017 New Bill Could Be a Game-Changer for MDLs and Class Actions

  The Fairness in Class Action Litigation Act of 2017, introduced in the U.S. House and approved by the Judiciary Committee last week, proposes far-reaching changes to the rules governing multidistrict litigations (MDLs), removals and class actions. Sponsored by the chairman of the House Judiciary Committee, Rep. Bob Goodlatte (R-Va), the bill’s stated purpose is to assure recoveries for plaintiffs with “legitimate claims” while also diminishing abuses that are “undermining the integrity of the U.S. legal system.”   MDLs   Much of the published commentary…

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10 Feb 2017 New Drug Application Conflict Preemption Defense Gains Traction in Utts

  Authored by Jim Murdica and Kristen Richer   Any brand name drug manufacturer knows the value of a good federal preemption defense: a straightforward disposition of challenges to the design or labeling of a product. It’s also no secret that the U.S. Supreme Court’s 2009 preemption decision in Wyeth v. Levine undercut the value of the preemption defense in brand name pharmaceutical litigation. The court reasoned that failure-to-warn claims for certain types of labeling were not preempted because, under the Food and Drug Administration’s…

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09 Feb 2017 Alter Ego Personal Jurisdiction Arguments Rejected

  Authored by Joseph G. Eaton and Oni N. Harton   A recent case, Goldthrip v. Johnson & Johnson, provides an excellent roadmap to follow when representing out of state corporate parents who have been dragged into court on an alter ego theory of personal jurisdiction based on the local activities of a subsidiary. On Dec. 8, 2016, U.S. Magistrate Judge Sonja Bivins of the U.S. District Court for the Southern District of Alabama, issued a report and recommendation granting Johnson & Johnson’s motion to…

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07 Feb 2017 Connecticut Supreme Court Affirms Commitment to §402A of the Restatement (Second) and Consumer Expectation Tests

  In the waning days of 2016, the Connecticut Supreme Court delivered a significant setback to product manufacturers hoping for adoption of a more stringent burden of proof in strict product liability actions. In Bifolck v. Philip Morris, Inc., Connecticut’s high court sought to clarify the evidentiary burdens set forth in the Connecticut Product Liability Act (CPLA), and whether to abandon its past adherence to § 402A of the Restatement (Second) of Torts in favor of § 2(b) of the Restatement (Third).   Adoption of…

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01 Feb 2017 Asbestos Litigation Isn’t Going Away, So What Can You Do About It? (Part 2)

  Given the ongoing risk of asbestos litigation, companies continue to receive their first asbestos lawsuits every day. What should you do when – or before – that lawsuit is filed?   Take It Seriously: Your company may be looking at just one case, but it could be more than that. Think of that one case as the template for the future. While you cannot prevent plaintiffs from filing cases, you may be able to make your company a less appealing target. Investigate: Consider conducting…

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30 Jan 2017 New Jersey Supreme Court Deals Blow to Drug and Device Manufacturers Seeking to Avoid Forum Shopping

  This week, in McCarrell v. Hoffman-La Roche Inc. et al., the New Jersey Supreme Court concluded that where statutes of limitations conflict, New Jersey’s limitations period will apply. Case No. 076524 (N.J. Sup. Ct., Jan. 24, 2016). The court’s decision reinstated a $25 million jury verdict for the plaintiff in a product liability action involving Accutane, an acne medication.   The plaintiff, an Alabama resident who was prescribed Accutane in Alabama and received medical treatment there, filed suit in New Jersey where Roche is…

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