Mass Torts Litigation

Practice Points

2019

Asarco Attempts to Certify Rarely-Seen Defendant Class Action
By Lorell M. Guerrero – May 31, 2019
The court’s order will help inform this area of the law and address many considerations, hopefully in a manner that continues to protect the rights afforded to defendants.

SCOTUS Doesn’t Clarify Application of Pharmaceutical Conflict Preemption
By Elie Biel – May 31, 2019
Whether a drug manufacturer should be held liable under a state-based failure-to-warn theory if the FDA had previously rejected a proposed amendment to the product’s warning label is no clearer.

You Gotta Nourish to Flourish
By Kasey Mitchell Adams – April 30, 2019
We need to tackle the brain drain that our profession tends to cultivate. Take care of yourself and encourage others to do the same.

Lamps Plus: Supreme Court Turns Out the Lights on Class Arbitration
By Pravin R. Patel – April 30, 2019
It should be pretty easy for employers and businesses to avoid class arbitration, given the light switch is really in their hands.

Prop 65 Heads East?
By Paul V. Majkowski – March 30, 2019
New York state is proposing changing their regulation of consumer and personal care products to be more like California’s.

Tips for Drafting Your Initial Set of Written Discovery 
By Richard Tabura – March 30, 2019
Don’t just copy and paste your requests to a personal injury plaintiff. Instead, consider following this checklist and writing your own.

Tips for Selecting an Expert from the Perspective of an Expert
By Patrick J. McGrath – March 30, 2019
Three suggestions you might consider when hiring your next expert witness.

Sali v. Corona’s Directives on Expert Testimony at the Class Stage
By Erica Rutner – February 28, 2019
The decision will have a unique impact on class action litigation in the Ninth Circuit.

Keep Calm and Carry on the Deposition
By Brian P. Cadigan – January 30, 2019
Excessively aggressive litigation can ultimately cause one’s client more harm than good.

Remediation, Damages, and Expert Evidence in Environmental Torts
By Cheryl Woodlin and Alexander Payne – January 30, 2019
Timing in environmental torts cases is critical. Attorneys should always pay careful attention to the point in time at which an expert appraiser has quantified losses.

2018

Taking Effective Expert Depositions in Toxic Tort Cases
By W. Clay Massey – December 19, 2018
A successful attack on expert testimony requires thoughtful, planned, and strategic questioning before trial.

The Canada Cannabis Act: A Blueprint for the Future
By Edd Gaus – December 19, 2018
As advocates argue for legalizing marijuana nationwide in the United States, we should all pay close attention to the outcomes of Canada’s new regulations.

The Battle of the Experts
By Emily Pincow and Alexis Kellert – November 26, 2018
Defense attorneys practicing in state court should be intimately familiar with the applicable expert admissibility standards.

California Federal Court Denies Class Cert, But With Plenty of Dicta
By Cassandra Love-Olivo – November 26, 2018
The recent decision in Conde v. Sensa reveals ways to defeat class certification, but more interestingly, provides a detailed analysis in dicta on typicality.

The Shakespearean Solo Litigator: To Climb or Not to Climb
By Kasey Mitchell Adams – November 19, 2018
How to be successful at networking and “put yourself out there” without being a nuisance to those around you.

PFAS Class Seeks Court-Ordered “Independent Panel of Scientists”
By Paul V. Majkowski – October 29, 2018
The issues raised by this proposal abound, and we offer a few initial observations here.

Pro Bono Tips for Young Lawyers
By Richard Tabura – October 24, 2018
Every lawyer has a professional responsibility to provide legal services to those unable to pay.

The Death of Stream of Commerce in Aviation Litigation
By Steven L. Boldt – October 24, 2018
Jurisdictional battle lines are now being drawn around specific jurisdiction, though those lines are becoming narrower each day, particularly after Bristol-Myers Squibb.

Overcome Your Fraudulent Feelings and Kick Out the Imposter Syndrome
By Natassia Kwan – September 26, 2018
A few ways young and diverse attorneys can manage their insecurities of not belonging or being unworthy of praise.

Evidence Must Show What is Fact and What is Just Opinion
By Brendan H. Fitzpatrick and Jessica P. Butkera – September 4, 2018
Maryland’s high court again raises the bar for admissibility of expert testimonies on general causation predicated on epidemiology in toxic exposure cases.

Ninth Circuit Court to Review Hyundai & Kia MDL Settlement En Banc
By Heather Lonian – August 29, 2018
There is concern that the current holding could significantly limit the ability of parties to enter into nationwide class settlements of state-law claims.

Personal Versus Professional Ethics: Are They (or Should They Be) the Same?
By Kasey Mitchell Adams – July 31, 2018
As much as we may not want to admit it, and as ethical as we may try to be, we regularly encounter situations that make us pause and consider both the professional—and personal—consequences some ethical dilemmas pose.

SCOTUS to Weigh in on Pharmaceutical Conflict Preemption in Fosamax Case
By Joe Winebrenner and Elie Biel – July 31, 2018
It is difficult to anticipate how the Court will answer the subject question, particularly when its present makeup differs so greatly from that which produced Levine.

Tips for Drafting and Using Clawback Agreements to Protect Privileged Materials
By Donald F. Winningham III – June 28, 2018
Bottom line: Be diligent and take reasonable steps to avoid production of privileged material.

“Newly Acquired Information” and Federal Preemption Defenses in Pharmaceutical Products Liability Cases
By Arameh O’Boyle and Clancy Galgay – June 28, 2018
These defenses remain the holy grail in pharmaceutical products liability cases.

Canadian Appeal Court Affirms “Thanks-But-No Thanks” Approach to Discovery of U.S. Residents in Canadian Class Action
By Cheryl Woodin and Emrys Davis – June 28, 2018
The Mancinelli decisions are the first Canadian cases to prohibit plaintiffs from obtaining discovery from non-parties in the United States. under section 1782.

The Supreme Court Enters the Fray on “Bare Metal” Liability in Maritime Actions
By W. Clay Massey – May 31, 2018
The case relates to cancer contracted from alleged asbestos exposure on Navy ships.

“Gig Economy” Scores a Victory in Ninth Circuit Antitrust Case
By Edward Gaus – May 22, 2018
Ride-sharing companies breathed a sigh of relief in U.S. Chamber of Commerce v. City of Seattle.

Courts Continue to Dismiss Aviation Cases on Jurisdictional Grounds
By John Maggio and Zachary Groendyk – April 30, 2018
The decisions have relied upon SCOTUS’s decision in Daimler AG v. Bauman.

How Young Lawyers Can Enhance Their Practice Through Good Works
By Natassia Kwan – April 23, 2018
Tips for giving back as you begin practicing law.

Update on Glyphosate: The Roundup MDL General Causation Daubert Hearings
By Paul V. Majkowski – March 30, 2018
We will defer any detailed analysis of the current hearings and the science at issue, awaiting the court’s ruling, but would comment on a few of Judge Chhabria’s reported remarks

Recent Disciplinary Decisions Stand to Teach Many Important Lessons to Young Lawyers
By Pravin R. Patel – March 21, 2018
It comes down to something that everyone heard over and over while growing up: Treat others as you would want to be treated.

Diversity and Inclusion in Litigation: Less Talk, More Action
By Kasey Mitchell Adams – February 28, 2018
The leadership make-up of mass tort MDL and class action lawsuits still does not reflect the diversity of our clients, communities, or jury pools. How can we change?

New Jersey Federal Court Doubts Ascertainability of Putative Class
By Emily L. Pincow – January 31, 2018
It is imperative that practitioners take note of how federal courts are applying the requirements of Federal Rule of Civil Procedure 23.

You Can’t Have All That!: Jurisdictional Discovery after Bristol-Myers Squibb
By Richard Tabura – January 31, 2018
A court will likely give plaintiffs the chance to conduct jurisdictional discovery if they can show there is a colorable basis for the existence of jurisdiction.

New Jersey Federal Court Doubts Ascertainability of Putative Class
By Emily L. Pincow – January 31, 2018
It is imperative that practitioners take note of how federal courts are applying the requirements of Federal Rule of Civil Procedure 23.

A Tale of Two (Mer)cedes
By Cheryl Woodin & Hartlee Zucker – January 23, 2018
The luxury vehicle giant's emissions litigation is an example of how cases in Canada and the United States can proceed at different speeds and on procedurally different routes.

2017

Shots Fired! Hunter’s Claims Against Munitions Maker Survive Summary Judgment
By Jack Nolan – December 28, 2017
Young lawyers should be mindful that, despite a client’s track record, it is unlikely to remain perfect forever.

Does American Pipe Tolling Extend to Putative Class Claims?
By Erica W. Rutner – December 28, 2017
The Supreme Court is set to resolve this circuit split.

The Specter of Drone Litigation Takes Off
By Timothy Tomasik & Edet Nsemo – December 28, 2017
Because this rapidly growing industry of recreational flight is fluid and evolving, hobbyists should regularly consult state and municipal authorities.

SCOTUS Skips a Spokeo Review. But Should You?
By Allison Semaya – November 30, 2017
It is only a matter of time before the Supreme Court weighs in on the conflicting holdings coming out of the circuit courts.

Responses to Discovery Document Requests Are Now Required to Be . . . Responsive?
By Matthew S. Almon and Leon Whitten – November 30, 2017
Attorneys that have yet to update the boilerplate language used in their discovery "form file" risk increasingly harsh consequences for their failure to do so in the courts.

Will the 2017 Agricultural Health Study Shut the Rule 702 Gate on the Monsanto Roundup Litigation?
By W. Clay Massey – November 28, 2017
This highly publicized litigation currently involves hundreds of cases in the Northern District of California, and thousands of additional cases in state courts in California, Delaware, and Missouri.

The FDA’s MAUDE: Useful Insights for Medical Devices
By Patrick J. McGrath – October 31, 2017
Practitioners must understand the limitations of this tool and navigate through a challenging search process to use it effectively.

Is Sitting the New Smoking?
By Jed P. Winer – October 19, 2017
A new study suggests it may be, and law firms should take note.

Wondering Whether to Cite Wikipedia?
By Alexis Kellert – October 19, 2017
As information becomes more readily available, the legal community must question whether bright-line rules regarding Internet citations are even tenable.

Update to In re: General Mills Glyphosate Litigation
By Paul V. Majkowski – August 31, 2017
A report on new decisions in consumer cases based on the theory that the labeling of certain food products as "natural" is improper where glyphosate is allegedly present.

Eighth Circuit Clarifies Daubert Standard
By Joe Winebrenner – July 31, 2017
The opinion provides clarity regarding when plaintiffs' experts must consider potential alternative causes in forming their opinions.

SCOTUS Narrows the State Court Forums Available in Mass Tort Actions
By Donald F. Winningham III – July 27, 2017
But the Court leaves open the question of federal forums.

Can Lawyers Achieve Work-Life Balance in Only Two Minutes a Day?
By Angela Sordi, LL.B., CEC – June 28, 2017
Learn the practices and techniques that will help you become more present in your day-to-day life.

Eleventh Circuit: Alabama Law Applies Minority Rule in Toxic Tort Take-Home Exposure Cases against Employers
By W. Clay Massey – May 31, 2017
A wife spent 22 years washing her husband's asbestos-laden clothing, and died of mesothelioma.

A Win for Passengers: Court Concludes State Negligence Claims Against Airline Can Proceed
By Tim Tomasik – May 31, 2017
A Pennsylvania court’s holding makes it clear that clients sustaining pre-takeoff injuries will be permitted to proceed under state negligence claims.

Fourth Circuit Affirms Summary Judgment Based on Evidentiary Oversight
By Joe Winebrenner – May 31, 2017
The Carlson decision offers a lesson regarding the strictness of the federal rule.

Specifically General or Statutory: Knowing Your Basis for Jurisdiction
By Matthew A. Moeller – March 31, 2017
Litigators should look to the specific state statutory language and related jurisprudence to avoid baseless positions.

Supreme Court to Address Constitutional Limits of Personal Jurisdiction
By Joe Winebrenner and Jeff Wojciechowski – February 28, 2017
The case is Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County.

Third Circuit Decision Analyzes Post-Spokeo Standing in Data Breach Cases
By Heather Lonian – January 31, 2017
Conflicting rulings demonstrate the fact-specific nature of Article III standing inquiries in data breach cases.

New Nanotechology Rule and Handling Toxic Torts
By Paul V. Majkowski – January 31, 2017
The EPA issued its final rule relating to reporting requirements under TSCA for nanoscale chemicals.

Louisiana Federal Court Applies Lost Profits Law to New Oil Ventures
By Matthew A. Moeller – January 31, 2017
The case is Peaker Energy Group, LLC, et al. v. Cargill, Incorporated, et al.

2016

Pennsylvania Court Takes New Approach in Forum Non Conveniens Dispute
By Scott Brooksby – December 23, 2016
The case arose from the crash of a twin-engine plane in Portugal.

Practical Guidance for You and the Updated Federal Rules
By Patrick Reilly and Eldin Hasic – December 12, 2016
Learn about the timing change regarding electronically served discovery that all litigators will need to keep in mind.

Understanding the Latest Trends for Ascertainability and Predominance in Class Certification
By Emily L. Pincow and Elizabeth B. Boggia – December 12, 2016
It has become increasingly important for practitioners to analyze how federal courts interpret the requirements of Federal Rule of Civil Procedure 23 to certify a class.

“Every Exposure” Opinions Fail, as Courts Rule That Dose Matters
By Knight S. Anderson – November 30, 2016
The plaintiff’s experts need to have some assessment of the requisite dose to cause the disease at issue and the relative doses that a plaintiff may have received.

A Proportional Response?: Practical Guidance for New Federal Rule 26
By Matthew A. Moeller – October 31, 2016
Few amendments to the Federal Rules have garnered as much notoriety and attention.

Your 2016 Update on Drone Regulation and Litigation
By Erika Maurice and Vincent C. Lesch – October 31, 2016
What's going on up there?

Denture Cream MDL Loses Its Bite
By M. Joseph Winebrenner and Nicholas D. Teichen – October 31, 2016
Supreme Court declines to review case dismissal after successful Daubert challenge.

Don’t Bring Admissions to an Expert Fight
By Fritz Metzinger – September 6, 2016
The Southern District of New York's decision in Mirena.

How to Take a Two-Step Approach to Preparing Your Expert Witness for Deposition
By Kristin L. Beckman – September 6, 2016
With hectic schedules for both lawyer and client, timing is everything.

Considering Where to Litigate an International Mass Tort Case
By Paul V. Majkowski – August 31, 2016
Read about the latest turn in the long-running dispute between Chevron and Ecuadorian residents alleging environmental damages.

In Dose of Common Sense, FDA Decides Not to Regulate All Health Apps as Devices
By Maxwell Herman – August 9, 2016
The non-binding guidance provides a degree of certainty to manufacturers of popular devices such as FitBit and the Apple Watch.

Sanctions for Forum Shopping the Approval of Class Action Settlements
By Eric Hudson – August 9, 2016
The case is Adams v. United States Auto. Association.

FDA Issues FSMA Final Rule on Intentional Adulteration of the Food Supply
By Karen Woodward – July 15, 2016
The rule applies, with some exceptions, to U.S. and foreign companies who are required to register as food facilities under the Food, Drug, & Cosmetic Act.

The Far Reach of the Courts' "Inherent Power" to Sanction Misconduct
By Mackenzie C. Schott – June 30, 2016
The U.S. Court of Appeals for the Fifth Circuit recently affirmed a district court's decision to sanction attorneys for ethical violations surrounding the Deepwater Horizon oil-spill settlement program.

Examinations at Trial: "Fun" with Surprise Witnesses
By Kristin L. Beckman – June 30, 2016
Fear not. With a couple of simple rules, you can navigate cross-examining a surprise witness!

Federal Court Rejects "Relative Risk" Testimony of Plaintiff's Expert
By David E. Rutkowski – June 30, 2016
The First Circuit affirmed the district court’s ruling to reject the relative risk testimony of the plaintiff’s specific causation expert under Rule 702 of the Federal Rules of Evidence.

Oregon Supreme Court Recognizes Doctrine of Forum Non Conveniens
By Scott Brooksby – May 27, 2016
The opinion illustrates how state standards for dismissal based on this discretionary power can vary.

Injury-In-Fact Must Be Concretely Particular and Particularly Concrete
By Scott Brooksby – May 27, 2016
SCOTUS ruled that the violation of a statutorily created personal interest, alone, is insufficient for standing.

Rule 68 Offer of Judgment Is Not Tool to Moot Plaintiff's Claims Before Class Certification
By Lacy Triplett – May 1, 2016
The case is Chen v. Allstate Insurance Co..

Jurisdictional "Whack-a-Mole": Overlapping Class Actions and Abuse of Process
By Bevan Brooksbank and Cheryl Woodin – April 27, 2016
Counsel who have benefitted from the use of the highly orchestrated MDL system will be disappointed to find that a class proceeding will not possess the same degree of coordination if it migrates north of the border.

Fifth Circuit En Banc Opinion on Improper Joinder
By Carmelite M. Bertaut – April 21, 2016
The case is Flagg v. Stryker Corp.

Lessons from the Erin Andrews Verdict: It's Not about the Money
By Lindsay A. Eriksson – March 31, 2016
A corporate defendant must not discount the emotional, deeply moral nature of an invasion of privacy.

Court Holds ACAA Preempts Passenger Claim Arising From Service-Dog Bite
By Scott Brooksby – March 31, 2016
The case is Sullivan v. Alaska Air Group Inc..

Juiced-Up Personal Jurisdiction Theory Rejected by TRT MDL
By March 31, 2016
Mass tort practitioners should revisit their personal jurisdiction and removal strategies subsequent to this February 2016 decision.

West Virginia Legislature Adopts Learned Intermediary Rule by Statute
By Eric Hudson – February 29, 2016
This is an important development for litigation involving prescription pharmaceuticals, and it is obviously a marked change in Mountain State law.

Arizona High Court Reestablishes the "Learned Intermediary" Doctrine
By James Neslon – February 25, 2016
The doctrine provides that the manufacturer of a prescription drug or medical device discharges their duty of care to consumers by providing adequate warnings about the dangerous propensities of the drug or device to the prescribing physician.

Expansion of Preemption and Congress's Intent to Occupy Entire Field of Air Safety
By Jonathan E. DeMay, Jane M. Sigda, Erika Maurice – February 24, 2016
The development of this line of authority could have a profound impact on future mass-accident litigation and product-liability claims.

The Uphill Climb to Establish General Personal Jurisdiction over a Foreign Corporate Defendant
By Scott Brooksby – January 29, 2016
The Siswanto case serves as fresh instruction on the vigorous scrutiny that courts apply to determine the existence of general personal jurisdiction over a foreign defendant.

Depositions: What Do You Want From Me?
By Kristin L. Beckman – January 26, 2016
By starting at the end of your case and working backwards, a deposition can soon transform from a potentially aimless fact-seeking mission to a direct, concise, but thorough exploration of any and all issues needed for your case, with a detailed eye towards how the testimony may help you down the road.

Class Certification for Medical Personal Injury Cases Still Proves Difficult
By Laura Pizzitola – January 26, 2016
Although it did not create new law in this area, the Shepherd case emphasizes the difficulty of establishing a legitimate class in medical-device and -products cases like this.