Just over 50 years ago, Congress passed the Multidistrict Litigation (MDL) Act, with the intent to make it more efficient for parties to litigate factually similar but geographically dispersed complex cases. While the statute today is virtually unchanged from the original version, what has changed is the number of cases in MDLs. Ten years ago, MDLs represented only 15 percent of the civil caseload. By 2018, however, that number had more than tripled, and MDLs accounted for almost 47 percent of the total civil caseload in the United States.[1] Product liability MDLs alone make up almost 90 percent of pending MDLs.[2]

As the number of MDLs has grown, so has the focus on the MDL process and whether the process is working. One frequent criticism is that a significant percent – between 30-40 percent – of cases filed in any MDL turn out (often at the settlement stage) to be unsupportable.[3] Why is this the case? Likely in part because the MDL process does not have an effective mechanism to weed out non-meritorious cases early. This post addresses the meritless claim problem and analyzes some proposed solutions.
Continue Reading

Product liability defendants often seek to remove cases to federal court. That’s because federal jurisdiction provides the federal pleading standards, robust expert discovery, efficiency through uniform procedural and evidentiary rules, and often more diverse jury pools. Sometimes defendants can use removal to leverage early case resolution.

But it’s not always clear when a defendant can remove to federal court because the rules vary among the circuit courts, the facts drive the decision, and the case law continues to develop.  This year several cases highlighted the evolving removal landscape and addressed four important questions.
Continue Reading

Most holiday seasons, an “it” toy stands at the top of children’s wish lists. With this instant rise in popularity frequently comes a corresponding rise in consumer complaints. Years ago, the consumer complaints might get some media attention—but that attention usually focused on the consumer competition to acquire the demand-exceeds-supply product.

Now, people turn to social media to detail in words, pictures, and video any perceived problem with their much-hyped purchase. This contributes to a manufacturer’s nightmare, trying to quickly determine which complaints are just disappointed expectation and which might actually be a consumer safety issue. Can manufacturers likewise use social media to help calm the storm?
Continue Reading

Calls for a government-led investigation of the potential negative health effects of crumb rubber turf are getting louder, and the Consumer Product Safety Commission is listening. Crumb rubber turf infill consists of black pellets of ground-up rubber, and it’s become increasingly popular in the construction of sports fields. Some are concerned, however, that crumb rubber turf may expose athletes to cancer-causing chemicals.

On Wednesday, January 27, CPSC chairman Elliot F. Kaye, in statements to a Florida television station, indicated that CPSC will investigate the potential risks of rubber turf.


Continue Reading

The cannabis industry is taking a hit.  The nation’s first cannabis product liability lawsuit was filed in Colorado and challenges the cannabis industry’s production process.

Flores v. LivWell Inc., was filed by two marijuana users alleging that the fungicide Eagle 20 was intentionally applied to thousands of marijuana plants at a Denver facility. Plaintiffs Brandan Flores and Brandie Larrabee are seeking class-action status contending that LivWell Inc. (LivWell), one of the largest cannabis growers in the state of Colorado, sold marijuana sprayed with Eagle 20 to medical and recreational customers without adequately warning consumers of the risks associated with Eagle 20. Neither plaintiff alleges they were sickened from ingesting marijuana they purchased at LivWell.
Continue Reading

Less than 1% of the population suffers from the serious gluten allergy known as celiac disease. Yet every time this writer goes out to dinner at least one dining companion passes on bread and pasta, claiming a self-diagnosed “gluten sensitivity” that manifests as a collection of nondescript symptoms, the major one being “fatigue.” The odd thing is that our obsession with gluten – present in a staple food for millennia – has only recently become the bad actor in all sorts of physical and mental maladies in celiac-free individuals.
Continue Reading

Last month, Wired reported that researchers hacked the dashboard entertainment system of a vehicle being driven on public streets. Once they had access, they used that entry point to remotely control vehicle systems through the onboard diagnostics port. The researchers warned that they could have easily hacked hundreds of thousands of vulnerable vehicles traveling the world’s highways.

After this demonstration, digital security researchers at the University of California at San Diego went a step further. They showed that they could take control of a vehicle’s onboard diagnostics port to activate the wipers, engage the brakes and even disable the brakes at low speed. That feat — remotely disabling brakes — causes significant safety concerns.
Continue Reading

The string of retractions of published peer-reviewed medical and scientific articles due concerns about fraud or suspected fraud continues. This week a major publisher of scientific and medical articles has confirmed that it is retracting 64 articles from 10 of its subscription journals based on concerns that the peer review process was “compromised.”

The publisher, Springer, issued this statement:
Continue Reading

The American Bar Association Journal is seeking recommendations from law blog users about which blogs to include on its 2015 list of the 100 best legal blogs.  Inclusion in the ABA’s Blawg 100 is a prestigious honor that is earned through a rigorous review and voting process.

The ABA is soliciting “friend-of-the-blawg briefs” from readers for its 2015 list through this link right here.


Continue Reading

The Consumer Product Safety Commission (CPSC) has responded to the June 27, 2015 PL&MT Blog’s post Falling off the Fast Track: CPSC’s New “Stop Sale” Demand by Jonathan Judge.  The post was republished by the National Law Review and the CPSC’s comments can be found here.  The back-and-forth is very productive and enlightening.  This post contains Jonathan Judge’s reply to the CPSC’s response.
Continue Reading