Consumer products companies may be eager to use Made in the USA labels to advertise, particularly given the political climate and increased publicity around domestic manufacturing. But they must pay close attention to the state and federal laws that regulate what Made in the USA actually means.
On January 9, 2017, the United States Supreme Court granted review over a case from the California Supreme Court that could affect whether plaintiffs can bring product liability and mass tort claims in states where they don’t live and didn’t suffer an injury.
In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, No. 16-466, the Court will decide whether the California courts properly asserted jurisdiction over Bristol-Meyers Squibb (BMS). It will consider where companies that operate nationwide businesses can be sued, and how their activities in a state—including marketing or sales—could expose them to a lawsuit there.
If the Court decides that California courts have jurisdiction over BMS in this case, then companies could face more nonresident plaintiff lawsuits, particularly in California. For companies, these lawsuits could mean facing potentially plaintiff-friendly laws and courts and the inconvenience of defending a case in another part of the country. Continue Reading Hotel California: Supreme Court Will Review Whether Plaintiffs Can Check in to California Courts from Afar
On June 28, 2016, the Court of Appeals decided the following question: Does a manufacturer have a duty to warn about asbestos-containing parts made by someone else but used with its non-asbestos product? The Court answered, “Sometimes,” under a relatively narrow set of circumstances.
The plaintiff in Dummitt v. Crane Co., a Navy boiler technician from 1960-1977, alleged that he developed mesothelioma from exposure to asbestos insulation used with Crane Co.’s high-temperature steam valves. Crane Co. didn’t make the insulation, and its valves did not contain any asbestos. Continue Reading New York Court of Appeals Addresses the Duty to Warn
Last week, the US Supreme Court ruled that an offer of judgment under Federal Rule of Civil Procedure 68 made to the lead plaintiff in a class action lawsuit, in addition to a separate free-standing settlement offer in the same amount, does not render the lawsuit moot.
In Campbell-Ewald Co. v. Gomez, No. 14-857, 2016 WL 228345 (U.S. Jan. 20, 2016), Jose Gomez filed a class-action lawsuit seeking damages under the Telephone Consumer Protection Act as a result of unwanted text messages he and others received from Campbell-Ewald Company. Before Gomez had filed his motion for class certification, Campbell made an offer of judgment to him under Federal Rule of Civil Procedure 68 which would have satisfied his personal claim entirely. Gomez allowed this offer to lapse after 14 days, as specified by the rule. Campbell then moved to dismiss the case, claiming that no controversy remained after its offer provided Gomez with complete relief. Both the District Court and the Ninth Circuit Court of Appeals disagreed with Campbell. Continue Reading Supreme Court Says Offering to Settle Cannot Moot Class Action Suits
On November 10, 2015, a Charleston, West Virginia jury returned a unanimous verdict for defendant Dorel Juvenile Group, Inc., finding the company’s High Rise booster seat to be neither defective nor responsible for the death of a four-year-old child. Tragically, the child died from injuries sustained in a horrific, multiple-rollover accident that occurred on a snowy section of Kentucky interstate in 2009. Counsel for the minor’s estate argued that Dorel was responsible for the death because serious accidents do happen, and only seats with five-point internal harnesses should be offered for sale. Schiff Hardin’s lawyers showed that booster seats – including the High Rise – offer excellent protection, as demonstrated through testing, and that the child unfortunately was in the worst possible position in the vehicle during this crash. Each party presented multiple experts and fact witnesses over the course of a week and a half. Plaintiffs sought several million dollars in damages. After an hour and a half of deliberation, the jury unanimously agreed with Schiff Hardin, found for Dorel, and awarded no damages.
Dorel was represented at trial by Jonathan Judge and Matt Schiltz of Schiff Hardin, with able assistance from West Virginia co-counsel Hendrickson & Long.
Exposure to potentially harmful substances at some level is a fact of modern life. These substances are everywhere — in the air we breathe, in the food we eat, and in the water we drink — and many of these substances are naturally occurring. It is impossible to have zero exposure to all of them.
For both science and law, however, the issue is not whether someone has some detectable exposure. Rather, it is whether the dose was sufficient (in quantity and duration) to cause harm.
In a regulatory setting, the question posed is what level of exposure creates an unreasonable risk of harm. In a lawsuit, however, the alleged harm has already occurred, usually in the form of a disease that has many possible causes. The question is causation. Continue Reading Seventh Circuit Ruling On Scientific Evidence Closes Some Doors But Opens Others
In its June 30, 2015 opinion, Landra v. New Dominion, LLC, the Oklahoma Supreme Court held that a personal injury tort action alleging that fracking-related activity caused an earthquake that then caused the plaintiff’s injuries can proceed in an Oklahoma district court. The Oklahoma Supreme Court made no factual or legal findings with respect to the merits of the claims of causation, it simply held that the district court has jurisdiction to hear the suit based on the allegations made.
The Landra plaintiff is a resident of Prague, Oklahoma, and her lawsuit seeks compensatory and punitive damages for injuries allegedly proximately caused by the defendants wastewater disposal practices. The plaintiff claims that in November 2011 she was watching television in her living room when a 5.0 magnitude earthquake struck causing rock facing on the two-story fireplace and chimney to fall onto her causing injury to her knees and legs. She claims personal injury damages in excess of $75,000. Continue Reading Fracking-Related Personal Injury Tort Claim Allowed to Proceed in Oklahoma Court
The Supreme Court recently granted certiorari in Spokeo v. Robins, a case that has the potential to redefine standing in federal court. The Ninth Circuit’s February 2014 decision permitted plaintiff Thomas Robins to establish standing under the Fair Credit Reporting Act (“FCRA”) with nothing more than a speculative injury. This contravenes Supreme Court precedent, which finds standing when a plaintiff suffers a harm that is actual, distinct, palpable, and concrete; attenuated and hypothetical injuries do not constitute an injury-in-fact. The implications of the Ninth Circuit’s holding in Spokeo v. Robins have grabbed the attention of companies in nearly every industry. Their concern, as expressed by the U.S. Chamber of Commerce – granting standing to plaintiffs who have not suffered an injury-in-fact will open the flood gates to no-injury class actions brought under statutes that authorize a private right of action. But, in truth, the implications to businesses could extend beyond this. Continue Reading No Injury? No Problem.
The Ninth Circuit’s recent decision in Allen v. The Boeing Company may pave the way for removal of more mass tort claims to federal court. Allen held that an environmental mass tort occurring over many years is removable under the Class Action Fairness Act (CAFA), finding the “local single event” rule did not apply. Continue Reading Ninth Circuit Opens the Door to a Federal Forum for Environmental Mass Torts
On Friday afternoon, a jury in the Northern District of Illinois returned a verdict for defendants Owens-Illinois, Inc. and ExxonMobil, rejecting plaintiff Charles Krik’s claim that his lung cancer developed as a result of a “synergistic effect” between his alleged asbestos exposure and his cigarette smoking. The jury found, as argued by the defendants, that the sole proximate cause of plaintiff’s lung cancer was cigarette smoking. The jury’s finding on sole proximate cause made it unnecessary to reach the questions of whether the defendants were negligent or whether Mr. Krik was contributorily negligent. It was also unnecessary for the jury to reach Owens-Illinois’s government contractor and maritime defenses, in light of the defense verdict on causation.