On June 19, 2017, the U.S. Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court of California (BMS), an action brought in California state court that included some non-California plaintiffs alleging injuries not suffered in California. The Supreme Court – for the second time this term – narrowed where plaintiffs can constitutionally sue companies.

The decision already is impacting mass tort actions. On the same day as the BMS decision, a Missouri state court declared a mistrial in an action alleging that Johnson & Johnson’s talc products cause ovarian cancer.

BMS provides product liability defendants with an opportunity to argue that state courts do not have personal jurisdiction over them when the claims have no connection with the defendants’ activities in the forum state. Continue Reading Checking Out of Hotel California: The U.S. Supreme Court Holds That Plaintiffs Cannot Sue Companies Anywhere They Do Business

On May 30, 2017, the U.S. Supreme Court issued its opinion in BNSF Railway Co. v. Tyrrell (BNSF), another case that defines the constitutional limits of general personal jurisdiction over companies.

The major issue in BNSF was whether a railroad company had a substantial enough presence in Montana for the Montana courts to assert general jurisdiction over the company. The Court’s decision also answered whether a federal law, the Federal Employers’ Liability Act (FELA), conferred personal jurisdiction to state courts over railroad companies wherever they are “doing business.” Continue Reading Safe Crossing: The U.S. Supreme Court Gets State Courts on Track with Daimler

In 1989, the Back to the Future franchise made several fanciful predictions about 2015.  One prediction may now be coming true: hoverboards have hit the streets — sort of.  The currently-available hoverboards, as opposed to the Hollywood fantasy ones, are more properly described as hands-free, self-balancing scooters.  Fueled by viral videos and celebrity social media posts, these battery-powered scooters are quickly becoming the must-have gift of the holiday season.

As the popularity of these hoverboards increases, however, so too does the potential for claims against manufacturers and sellers.  Over the last three months, the Consumer Product Safety Commission (“CPSC”) has reportedly learned about nearly 20 separate injuries from hoverboard-related accidents, ranging from sprains and contusions to broken bones and at least one head injury.   Continue Reading Oh What Fun It Is To Ride . . . A Hoverboard? This Year’s Must-Have Holiday Gift Poses Potential Litigation Risks for Manufacturers

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.

 

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 Growing Concerns: Marijuana Industry Hit with Its First Ever Product Liability Lawsuit

Hot dogs, sausages, and corned beef now have something in common with asbestos, benzene, and ionizing radiation.  They are in the same class of cancer-causing substances, according to the World Health Organization’s (WHO) cancer agency, the International Agency for Research on Cancer (IARC).  The organization’s October 26, 2015 press release states that a group of 22 experts from 10 countries convened by the IARC Monographs Programme classified red meat as “probably carcinogenic to humans” (IARC Group 2A), and processed meat as “carcinogenic to humans” (IARC Group 1).  The group made the classifications after “thoroughly reviewing the accumulated scientific literature” and finding an association between consumption of red meat and colorectal cancer, and an increased risk of colorectal cancer with each 50-gram portion of processed meat eaten daily. Continue Reading A Meaty Issue: Do Red and Processed Meats Cause Cancer?

“The dose makes the poison” is a maxim of toxicology. The phrase is attributed to Paracelsus, a true Renaissance Man and founder of the field who lived more than 500 years ago, long before the industrial, chemical/pharmaceutical, and technological revolutions.   In today’s society, we are exposed to various chemical substances on a daily basis. Some of those chemicals may be harmless and some may be harmful. Many of the chemicals we experience have none of the so-called “onion properties” – – you could be exposed and never know it. A recent USA Today article highlighted a new wearable technology that can detect the various chemical substances encountered in daily life. The technology has the potential to change how we understand and control individual exposures to potentially harmful substances. Continue Reading Monitoring Your Personal Environment with Wearable Technology

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 Electromagnetic Hypersensitivity (EHS): Fad Allergy, Debilitating Disease, or What?

The difficulty of making a malignant mesothelioma diagnosis continues to stimulate discussion in the medical community. Last month, Dr. Aliya Husain from the Department of Pathology at the University of Chicago, and her colleague Qudsia Arif, published a short and direct article titled “Malignant Mesothelioma Diagnosis” in Archives of Pathology and Laboratory Medicine. The published context for the article states “mesothelioma is a relatively rare pleural tumor that may mimic benign mesothelial lesions and various other tumors . . . this makes the diagnosis challenging for the pathologist.” This blog has discussed some of those difficulties in prior posts here and here. Continue Reading Diagnosing Mesothelioma Continues to Challenge Pathologists

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