Court Rulings/Decisions

Imagine you try to flush a wipe that is branded flushable and discover it won’t flush. You are angry enough to sue the manufacturer for damages for “consumer fraud,” but should you also be able to force the manufacturer to change the label, even though your experience means you now know the “truth” about the product?
Continue Reading

When a bulk container of vitamins tore and began to leak, it set into motion an unforeseen chain of events — beginning with the injury of Martin Cassidy and ending with an increased risk of strict liability for distributors of allegedly defective products.

In an Illinois strict product liability action, the court must dismiss a distributor once that distributor certifies the identity of the product’s manufacturer. Previously, a plaintiff seeking to vacate such a dismissal order — to reinstate the distributor as a defendant — had to show that the manufacturer was “bankrupt or nonexistent.” Cassidy v. China Vitamins, LLC rejected that rule.[1] The court held instead that the distributor could be reinstated as a defendant if the “plaintiff can establish other circumstances that effectively bar recovery of the full measure of judgment damages” from the manufacturer.

What are these other circumstances? The court declined to say, leaving it up to distributors, manufacturers, their counsel, and trial courts to attempt to define them.
Continue Reading

Earlier this year, the U.S. Supreme Court decided Air & Liquid Systems Corp., et al. v. Devries, 139 S. Ct. 986 (2019), a maritime tort law case in which plaintiffs alleged that asbestos exposure during their Navy service caused them to develop cancer. The Supreme Court held that, in the maritime context, a manufacturer has a duty to warn not only of the manufacturer’s own products, but also of third-party products that are later added to the manufacturer’s product.
Continue Reading

Parties engaged in multidistrict litigation (MDL) face a crucial decision: which case or cases should be tried first? For both plaintiffs and defendants, bellwethers — the first trial or trials from the similar cases making up the MDL — can determine how the rest of the cases proceed. One current headlining case — the prescription opioid MDL pending before Judge Polster in federal district court in Ohio — shows both how hard it is to select bellwethers and why bellwethers matter.
Continue Reading

We have written extensively on this blog about personal jurisdiction and how the U.S. Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California changed the rules regarding specific jurisdiction.
Continue Reading

During the holidays, many Americans flock to nearby stores to buy presents and decorations. And given today’s global economy, many of those products are made by foreign manufacturers. But what happens if the product fails in a manner that could give rise to potential legal liability? That raises the question of when a domestic plaintiff can sue the manufacturer of a product manufactured outside the United States.

Therein lies the artificial Christmas tree conundrum. Historically, plaintiffs would turn to the “stream of commerce” doctrine to seek personal jurisdiction over product manufacturers and distributors that are not present in the forum state. Sometimes they were successful, but sometimes they were not. And the U.S. Supreme Court’s recent decision in Bristol-Myers Squibb Co. v. Superior Court of California[1] is further muddying the waters.
Continue Reading

Generic pharmaceutical drugs are versions of brand-name counterparts with one major difference:  they typically cost a lot less. By FDA regulation, the two have the same active ingredients, dosage forms and strengths, and routes of administration.[1] And while federal law generally regulates pharmaceutical approval, states can regulate pharmaceutical distribution. Why is this significant? All states permit pharmacies to substitute generic drugs for the brand name equivalent, and some states require substitution in certain circumstances.[2] But a generic pharmaceutical company cannot change the brand company’s product label, so a person’s ability to sue a drug manufacturer is limited to the brand company who created the label.[3]
Continue Reading

In many mass tort cases, and particularly in cases involving exposure to a substance with a long latency period, defendants and plaintiffs must rely on documents created decades ago. That’s challenging, of course, because many of these documents are hearsay and often there’s no one around with personal knowledge of their authenticity or contents. But there is hope for parties trying to admit these documents: they may be able to call on the ancient document hearsay exception.
Continue Reading

Long-anticipated changes to California’s Proposition 65 warning requirements took effect on August 30, 2018, through amendments and new rules issued by the California Office of Environmental Health Hazard Assessment. Among other changes, the new rules now (1) require businesses to provide California consumers with product warnings at the time of purchase, including at the time of online purchases; and (2) change the text of the warnings that businesses may use to qualify for “safe harbor” protections. The new warning requirements apply only to products manufactured after August 30, 2018.
Continue Reading