Since prescription opioids were first introduced for pain treatment in the 1990s, the number of drug overdose deaths has quadrupled, and more than a half million Americans have died from an overdose involving an opioid.[1] The CDC has labeled this an epidemic, and most agree that it is a public health crisis. But courts are divided over whether this crisis is legally a public nuisance. As appellate courts issue decisions and trials across the country reach verdicts, the contours of tort law are being reshaped and defined — specifically the applicability of public nuisance in product liability and mass torts cases.
Continue Reading Trending in Tort Law Part II: Courts Address the Growing Use of Public Nuisance in Mass Torts

In March, the Supreme Court addressed the test for specific personal jurisdiction in Ford Motor Co. v. Montana Eighth Judicial District Court.[1] The Court considered whether the test’s second prong — which requires that a plaintiff’s claims “arise out of or relate to” the defendant’s forum contacts — requires strict causation.

The Court rejected a strict causation requirement, but the analysis remains fact-intensive. The opinion appears to indicate that defendants may still be able to defeat the contention that the court has specific personal jurisdiction when their intended footprint is regional or their contacts are limited to certain persons or products. We review the Ford decision below and discuss how state courts in Illinois, Texas, and California have applied it.
Continue Reading Personal Jurisdiction: State Court Application of Ford Motor Co. v. Montana Eighth Judicial District Court

Punitive damages can often multiply a defendant’s potential exposure in litigation. A recent California appellate court decision, however, may make it easier for defendants to obtain summary judgment for punitive damages claims before a jury may consider a possible award. In Morgan v. J-M Manufacturing Company, Inc.,[1] the court vacated a $15 million punitive damages award because there was insufficient evidence to support the award. In fact, the court emphasized that there was no evidence that any corporate officer, director, or managing agent authorized or ratified any wrongful conduct, which a plaintiff must show under California law for a jury to award punitive damages. The ruling could signal that courts are requiring more specific evidence showing corporate defendants authorized or ratified wrongdoing, which in turn could help defendants get punitive damages claims dismissed before trial or awards vacated on appeal.
Continue Reading California Appellate Court Vacates $15 Million Punitive Damages Award

Several state and federal courts have recently addressed a hot-button issue in product liability law: whether the manufacturer of a product that has an asbestos-containing replacement part that causes injury may be liable even if the manufacturer itself did not manufacture or supply the replacement part. Consider this example: a manufacturer produces a steam trap or boiler that contains an asbestos gasket that needs to be replaced from time to time. Third parties supply the replacement gaskets. Is the original product manufacturer liable for injuries allegedly caused by the asbestos-containing replacement gaskets?
Continue Reading Whelan v. Armstrong Int’l, Inc.: Latest Asbestos Ruling Expands Manufacturer Liability for Injuries

We have previously written about various strategies that defendants use to remove cases to federal court (see here, here, and here). Today we are writing about one that defendants should pursue in cases when the tort occurs on federally owned land: “federal enclave” jurisdiction. Though there is not much case law on the topic, at least three circuit courts and many district courts have held that district courts have original jurisdiction over these matters. And it may be the case that a defendant can make a federal enclave argument in conjunction with other arguments for removal or on its own.
Continue Reading Federal Enclave Jurisdiction: Strategies for Removal to Federal Court When a Tort Occurred on Federal Land

Personal jurisdiction has always been a thorny and fact-specific topic in civil procedure. But the increasing complexity of transactions – development and manufacture of products across many borders, complicated chains of distribution, and the sale of products or services anywhere over the internet – has made it difficult for due process to keep up with technological and business advances. Courts can exercise jurisdiction over defendants only in locations where constitutional due process protections allow. In January, the Supreme Court granted certiorari in two consolidated cases to address the limits of specific personal jurisdiction. See Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., Case No. 19-368; Ford Motor Co. v. Bandemer, Case No. 19-369. These cases likely will clarify the limits of specific personal jurisdiction and whether conduct within the forum state needs to be the conduct that caused a plaintiff’s injury. Oral argument originally was set for April 27, 2020, but has been postponed due to COVID-19.

Continue Reading Supreme Court Will Address Personal Jurisdiction After State Courts Interpret BMS Decision