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BT Product Liability - News and Trends in Product Liability Litigation
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26 Jan 2017 Asbestos Litigation Isn’t Going Away, So What Can You Do About It? (Part 1)

  Despite what you may have heard, your company probably continues to face asbestos litigation risk, and it may even be on the increase. Consider the following:   Long Latency Period for Mesothelioma: Mesothelioma, a terminal cancer that can be caused by asbestos exposure, has a latency period that typically ranges from 20 to 40 years. That means most cases filed today allege exposures dating back to the 1970s through the1990s. Is it possible that your company or an alleged predecessor used asbestos in its…

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20 Jan 2017 New Year’s Resolutions for Your Product Warnings, Labels and Instructions

  As 2016 proved, large plaintiff verdicts in products cases are on the rise nationwide. As we counsel clients on active litigation, we also find value in helping clients with risk management strategies. This year, resolve to consider taking these three steps to review the safety of your products and accompanying warnings, labels and instructions to minimize risks and legal liabilities:   Review Compliance with Regulatory Requirements   Depending on the industry, product labels are subject to the regulatory requirements of agencies such as FDA,…

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18 Jan 2017 Limiting Damages Through Evidence of Medical Write-downs

  What a medical provider lists as the charge for a particular service often bears no relationship to the actual amount paid by the patient or his insurer. Both private and government insurers negotiate with the medical providers to pay less than the “listed charge” for services, resulting in medical “write-downs” of expenses. Can a tort victim recover the listed charge as damages, or should the plaintiff be limited to recovering only those amounts actually paid? Both courts and state legislatures have taken up the…

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13 Jan 2017 Who is to Blame for Spray Drift From Illegal Crop Protection Product Use?

  On Dec. 13, Bader Farms, Inc., a large-scale peach grower, brought suit against Monsanto Company for damage to 30,000 of its peach trees allegedly caused by dicamba (brand name Xtend) spray drift from neighboring farms. This case is one example in a growing number of cases alleging that other crops, pollinators and the environment were damaged by spray drift of crop protection products.   The question in the Bader Farms litigation will be whether a seed and herbicide manufacturer can be held liable for…

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10 Jan 2017 Additions to the Prop 65 List in 2016

  During the course of 2016, the California Office of Environmental Health Hazard Assessment (OEHHA) has added 16 new chemicals to the Proposition 65 List.  Companies doing business in California must provide Prop 65 warnings for all listed products starting one year after the date a chemical is listed.   The most controversial addition in 2016 involved styrene, a common chemical used to make latex, synthetic rubber and polystyrene resins, which are used to make plastic packaging, disposable containers and insulation. Other notable additions were…

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09 Jan 2017 Preemption Arguments Carry the Day In Ninth Circuit

  Authored by Dean Barnhard and J.T. Larson   The Ninth Circuit recently reminded practitioners that they should keep preemption — both federal and state — in mind as a defense. On Nov. 18, the court held that federal and state law preempted local regulations that impeded the use of pesticides and the development and field testing of genetically modified organism (GMO) crops in three Hawai`i counties. The preemption victory spanned multiple cases in separate appeals and although the facts differed in each case, the…

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09 Jan 2017 Why Daubert in D.C. Matters

  Since the U.S. Supreme Court held that Federal Rule of Evidence 702 superseded the “general acceptance” test more than 20 years ago in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Daubert standard has governed the admissibility of expert testimony in all federal courts. Gradually, many states have also adopted Daubert. With Motorola, Inc. v. Murray, 2016 WL 6134870 (D.C. Oct. 20, 2016), the District of Columbia becomes the latest holdout jurisdiction expressly dispensing the Frye standard and adopting Rule 702.   In Motorola, the…

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07 Jan 2017 Appeals Court Finds Compliance With Industry Standards Not Relevant

  In a recent decision, the Indiana Court of Appeals held that evidence of a manufacturer’s compliance with industry standards was not relevant in a case alleging negligent design. Terex-Telelect v. Wade, 59 N.E.3d 298 (Ind. Ct. App. 2016).   The plaintiff, Anthony Wade, was injured when he fell from an aerial passenger bucket attached to a truck. Wade alleged that Terex was negligent under the Indiana Product Liability Act in designing the bucket because it was manufactured without an interior step to facilitate egress…

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06 Jan 2017 A Look at the Indiana Supreme Court’s Fiscal Year-End Report

  Authored by Curt Greene and J.T. Larson   The Indiana Supreme Court recently released its annual report for the 2015-16 fiscal year that ended on June 30, 2016. The court’s biggest news in the past year was the departure of Justice Brent Dickson and the arrival of Justice Geoffrey Slaughter, but the court’s annual report contains additional interesting facts for practitioners.  A few notable takeaways include:   Criminal Law Focus: The court’s docket is still dominated by criminal cases. For the fiscal year, criminal cases…

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