Mass Tort

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Dictionary series: Tort

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

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We are delighted to share that this blog has received a 2020 “Go-To Thought Leadership Award” by the National Law Review for providing relevant analysis, knowledge, and thorough coverage of product liability and Consumer Product Safety Commission (CPSC) enforcement issues.
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Continue Reading Schiff Recognized as “Go-To Thought Leader” on Product Liability Issues

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Many companies were caught off-guard in the spring when diagnoses of COVID-19 multiplied rapidly and forced businesses to close or drastically change their policies with little warning. Now companies that have reopened must prepare for the future. As we have seen in recent weeks, resurgences may occur at any time in different parts of the country. And epidemiologists have warned about a potential second wave of infections in the fall.
Continue Reading Reopening and Readjusting: Preparing for a Diagnosis or Resurgence in the Coming Months

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In our last post, we discussed policy changes and new procedures that companies should consider as they reopen amid the COVID-19 pandemic, particularly given the increase in cases in many parts of the country. But companies cannot change policies in a vacuum: they must clearly and effectively communicate these changes to employees, customers, and the public. Clear, written policies will be ineffective if they are not communicated effectively.
Continue Reading Reopening and Readjusting: Communicating COVID-19 Policies to All Stakeholders

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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

Dictionary series: Tort

Manufacturers are used to defending strict product liability actions when plaintiffs claim that their products are defective. But in the opioid litigation, plaintiffs have filed something else: more than 2,500 public nuisance cases so far.
Continue Reading Trending in Tort Law: Transforming Product Liability Claims into Public Nuisance Actions

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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 Selecting Cases for Early Trials in Multidistrict Litigation: Which Way Will the Bellwethers Go?

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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 Time Marches On, Memories Fade, and Witnesses Die: How Lawyers Can Use the Underutilized Ancient Document Hearsay Exception

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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

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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