Products Liability Litigation

Articles

In-depth analysis and practical advice on topics relevant to your practice. Find all of the Products Liability Litigation Committee’s articles in this archive.

2019

Defense Strategies for Winning on the Statute of Limitations
By Whitney Frazier Watt and Robin E. McGuffin – August 13, 2019
The statute of limitations can be a powerful tool.

Personal Jurisdiction over Unnamed Class Members
By Joan R. Camagong – August 13, 2019
This year, the Fifth, Seventh, and D.C. Circuits are set to determine whether Bristol-Myers Squibb applies to class actions.

Use Your Most Valuable Tool to Winning Daubert Motions—Your Causation Expert
By Michelle Molinaro Burke and Eric L. Probst – August 13, 2019
Experts can effectively assist with early case assessment, deposition preparation, and disqualification motions.

Creatively Capturing New Business as a Solo or Small Firm Litigator 
By Meghan A. Rigney – February 28, 2019
Learn how to use your small size to creatively and effectively compete for new clients.

Key Developments in California's Proposition 65 Right to Know Law 
By Amy P. Lally – February 28, 2019
The aftermath of changes to regulations on the food and dietary supplement industries and a significant new food regulation poised to take effect in 2019.

Bifurcated Discovery in Fair Labor Standards Act Collective Actions 
By Michael W. Rich – February 28, 2019
When both sides to an FLSA collective action go into conditional certification knowing what the class should be, it can save everyone a lot of time, effort, and expense.

2018

Safe at Home? Preservice Removal and the Forum Defendant Rule
By Lindsay C. Omolecki – August 22, 2018
The federal removal statute contains an apparent loophole that can be used to remove a case to federal court before the forum defendant is served.

Counting Steps: Key Considerations for Wearable Device Manufacturers
By Jean Patterson and Elizabeth Monahan – August 22, 2018
The rising popularity of wearable technology poses a challenge for existing legal and regulatory frameworks.

High Concentration: Potential Health Risks of Cannabis Extractables
By James Rice and Tom Lewandowski – August 22, 2018
Cannabis concentrates represent the most rapidly growing segment of the anticipated multibillion-dollar cannabis market, but may have different chemical compositions that have not been well characterized and could result in some novel health risks.

Taking Up the Slack: An Update on Food and Beverage Slack-Fill Litigation
By Kyle Diamantas – August 22, 2018
Learn how to adequately protect your food and beverage products to stave off the threat of slack-fill litigation.

The Ups and Downs of Being "Smart": Smart Products Litigation
By Sarah Miller – February 16, 2018
As "smart" products have entered the marketplace, smart products liability lawsuits have not been far behind.

The Future of Recalls: Increasing Claims Rates and Recall Effectiveness
By Carmen Chambers – February 16, 2018
Despite the shocking incidence of recalls per year, they are typically ineffective.

Clarity or Confusion? International Service of Process
By Yesenia E. Cárdenas-Colenso and Hunter B. Oliver – February 16, 2018
Under Water Splash, the validity of an attempted service of process by mail remains an issue necessitating further analysis.

The GDPR Is Coming: Are You Ready?
By James P. Melendres – February 16, 2018
Whether a U.S. company has a physical presence in the European Union is not determinative of the regulation's impact.

2017

Reporting to the Consumer Product Safety Commission—When Does It End?
By Charles E. Joern Jr. – August 31, 2017
A recent federal court case gives important guidance on reporting to the CPSC and when those obligations end.

A Brief Look at the European Union’s New Medical Device and In Vitro Diagnostic Regulations
By Daniel S. Wittenberg and Cassie Redlingshafer – August 31, 2017
The intent of the new regulations is to strengthen patient safety and provide clarity around access to new and innovative technologies.

Health Canada Proposes to Ban Partially Hydrogenated Oils by Summer 2018
By M. Katie Gates Calderon and Alyse M. Zadalis – August 31, 2017
The U.S./Canada food regulatory alignment trend continues: Canada proposes a ban on PHOs by summer 2018.

Five Tips for Achieving Work-Life Balance
By Collette Alison Brown – August 31, 2017
Practical tips from associates and partners on how to balance the demands of life both at home and at work.

The Internet of Things: "The Next Big Thing" for Products Litigation
By Samuel L. Felker – January 30, 2017
The brave new world of the IoT across several product lines—home devices, automobiles, and medical devices.

Taking the Wheel: New Federal Guidance on Vehicle Automation and Cybersecurity
By Patrick J. Cleary and Angela G. Strickland – January 30, 2017
The potential move toward a holistic regulation of motor vehicles throughout the product life cycle and its effect on product liability law.

Skin in the Game: Potential Skin Hazards from Consumer Products
By Joel M. Cohen and Thomas A. Lewandowski – January 30, 2017
Two toxicologists describe the basic concepts and tools that legal professionals should become familiar with.

2016

Pump the Brakes: Driverless Cars and Assignment of Fault
By Bojan Manojlovic – August 10, 2016
Is our current legal framework ready for the challenges of this new technology?

GMO Labeling and the SAFL Act—Current Status and What the Future May Hold
By Scott K.G. Kozak – August 10, 2016
The Safe and Accurate Food Labeling Act, as drafted, would expressly preempt laws such as Vermont's Act 120.

Squeezing the Market Share: Corporate False Labeling Actions in POM and Beyond
By Sarah B. Miller – August 10, 2016
Juries may be becoming increasingly skeptical of Lanham Act claims based on false labeling.

Rule 26 Damages Disclosures: Pitfalls, Sanctions, and Suggested Practices
By Peter G. Pappas – August 10, 2016
How to address each challenge and avoid sanctions.

Ascertainability Requirement Leads to Inconsistency and Uncertainty in Class Actions
By Edward Soto and Erica Rutner – August 10, 2016
Meaningful discovery strategies, particularly in light of shifting jurisprudence, are critical to capably address the requirement.

Pharma Industry Beware: Arrest of Pharma Executive Sends Strong Message
By Sam Felker – February 8, 2016
The DOJ has a new strategy for combating health care fraud: individual responsibility.

You're Only Human (Factored) as a Product Defender
By Jim O'Reilly – February 8, 2016
When preparing a misuse defense, product manufacturer defense attorneys should consider any human factors research conducted by the company.

Federal Preemption and "All Natural" Food and Beverage Cases
By Shagha Tousi – February 8, 2016
Discover the origin and future of the lawsuits against the defective Chinese product.

The Supreme Court's Clarification on the Scope of Personal Jurisdiction
By Evan P. Moltz – February 8, 2016
Although Daimler and Walden clarify when a court may assert general and specific jurisdiction, respectively, they also raise new questions, especially for lower courts.

Using Cottle Orders to Resolve Multiplaintiff Litigation in California Courts
By G. Gregg Webb and Edward Gaus – February 8, 2016
When contemplating use of a Cottle order, be sure the case is "complex," the timing is right, and the order doesn't conflict with an existing statute.

A View from the Inside: Practice Pointers from In-House Counsel
By Adrienne Gonzalez and Daniel Wittenberg, with Penelope Dixon – February 8, 2016
An in-house Wal-Mart attorney shares thoughts on changes to discovery rules, advice to young lawyers, and those considering the move in-house.

2015

Compelling Discovery for Foreign Arbitrations
By J. Brittany Cross Carlson – August 10, 2015
"Foreign proceeding" requirement provides a potential defense to product manufacturers seeking to defeat discovery requests.

The Learned Intermediary Doctrine Gains Another Foothold in West Virginia
By Jennifer A. Foster – August 10, 2015
A medical device manufacturer has no direct duty to warn patients of the risks of its products, but what does this mean for pharmaceutical manufacturers?

The Evolution of Drywall Litigation
By Collette A. Brown and Ira J. Gonzalez – August 10, 2015
Discover the origin and future of the lawsuits against the defective Chinese product.

Liability Estimation for Pharma and Medical Device Products Liability
By Patrick J. McGrath and William Downs – August 10, 2015
Financial consultants provide a framework for creating robust estimations for companies facing litigation.

The Pathway to Primary Jurisdiction
By Bradley W. Pratt – August 10, 2015
Recent results in food and beverage consumer fraud class actions indicate why the doctrine had mixed results despite FDA interest.

Does a Sales Representative Owe a Duty to a Patient?
By Robyn Maguire – January 6, 2015
A look at a medical device sales representative's liability for negligent failure to warn.

A Surprising Win for the Learned Intermediary Doctrine in West Virginia
By Jennifer A. Foster – January 6, 2015
A medical device manufacturer has no direct duty to warn patients of the risks of its products.

FSMA: New Rules Mean New Risks for Food Industry Clients
By Sarah Brew and Rachael Dettmann Spiegel – January 6, 2015
Ensure your food industry clients are compliant with the Food Safety Modernization Act.

Proposed Changes to Proposition 65 Provide Limited Benefit to Business
By Elizabeth McNulty – January 6, 2015
Businesses selling into California may soon be subject to more stringent exposure warning requirements.

Can Products Liability Drill into Fracking?
By Prof. James T. O'Reilly – January 6, 2015
The industry is confident that not even products liability theories can shatter its defenses.

2014

How to Correctly Approach Independent Medical Exams
By Heidi Oertle and Shawna Boothe – July 23, 2014
When a party's physical or mental condition is at issue, an independent medical examination may be ordered as a matter of right or upon a showing of good cause. Who may conduct the exam and whether the attorney may be present varies among the states.

Potential Liability Inherent in General Document Preservation Holds
By John Camp and L. Vanessa Lopez– July 23, 2014
General document preservation holds may impose a duty to preserve documents for unforeseen litigation, where that duty may not have otherwise existed.

The Need for a Statute of Repose in Autonomous Vehicle Liability
By Michael A. Preciado – July 23, 2014
Autonomous vehicles have driven off the pages of Hollywood scripts onto real streets. The law must likewise evolve to protect manufacturers and the public from drivers who carelessly fail to update their vehicle's software.

Is There a Duty to Warn Even the Most Sophisticated User?
By Monica Williams Monroe – July 23, 2014
The California Supreme Court is considering whether a raw materials supplier has a duty to warn the manufacturer and/or end user of the finished product when the manufacturer is a sophisticated user who already understands the risks.

Self-Critical Analysis Privilege: Does It Protect Manufacturers Seeking to Review and Improve Internal Practices and Procedures?
By Elisabeth M. McOmber – July 23, 2014
Whether a product manufacturer can protect its efforts to review and improve its internal practices and procedures under the self-critical analysis privilege depends on the law of the jurisdiction, the nature of the review, and the needs of the plaintiff.

Illinois Supreme Court's Decision May Effect Application of Forum Non Conveniens
By C. Matt Alva – January 27, 2014
An initial impression of the Fennell decision's impact on the national asbestos dockets in St. Clair and Madison Counties.

2013

Comcast v. Behrend: Was It Really a Boon for Defense Attorneys?
By Jenny A. Mendelsohn – December 5, 2013
The Comcast decision may come to be seen as a hollow "victory."

A Primer for Food and Beverage Attorneys on Contamination and Recall Insurance
By Jonathan Cohen, Adrian Azer, and John Girgenti – December 5, 2013
A taste of the key issues companies—and their lawyers—should keep in mind when acquiring such policies.

Important Changes Proposed for CPSC Product Certification
By Charles E. Joern Jr. – December 5, 2013
The potential impact of the proposed rule has brought up numerous concerns for companies.

Medical Device Tracking: The FDA's New Unique Device Identification System
By Kara T. Stubbs and Wynn J. Maxwell – December 5, 2013
The FDA's new system for labeling and marking medical devices will be phased in over the next seven years.

Pro Bono Spotlight: Defending the Interests of Death Row Inmates
By Stephen E. Reynolds and Katie J. Marschke – December 5, 2013
Lori B. Leskin of Kaye Scholer LLP represents vulnerable defendants in post-conviction proceedings.

NHTSA Revs Up Campaign Against Distracted Driving
By Daniel Campbell and Ariel Applebaum-Bauch – July 29, 2013
The National Highway Traffic Safety Administration plans to issue guidelines aimed at curbing driver distraction from electronic devices.

Inside the Learned Intermediary Doctrine
By Chris A. Johnson, Alicia J. Donahue, and Paula Sarti – July 29, 2013
Exploring the exception for direct-to-consumer advertising.

Workers' Compensation Immunity for Companies with Separate Corporate Entities
By Michelle Molinaro Burke and Roy Alan Cohen – July 29, 2013
Strategies for avoiding potential exposure to civil lawsuits.

The FDA's 510(k) Approval Process in Medical-Device Litigation
By Troy Roberts – July 29, 2013
Considerations for manufacturers and legal practitioners.

The Case for Leaving the 510(k) Argument Out of a Pleading
By Prof. Jim O'Reilly – July 29, 2013
A counter perspective from a "vanishing breed"—one of the creators of the 1976 Medical Device Amendments.

No Crash Later?
By Sarah Murray – June 7, 2013
Maybe not as energy drink scrutiny heats up.

Discovery and Pharmaceutical Litigation: Know Your Client
By Matthew Jackson – June 5, 2013
Common characteristics of pharmaceutical companies and the current regulatory scheme for new drug development present unique challenges during discovery.

Reflections on Weeks
By Samuel L. Felker – April 4, 2013
The end of a winning streak for brand-name manufacturers or just a blip on the state-law tort screen?

Assessing Litigation Risks Before It's Too Late
By Lori B. Leskin – February 20, 2013
Act now to avoid "woulda-coulda-shoulda" scenarios.

Advertencia: Florida Silent on Duty to Warn in Spanish
By Jaret J. Fuente and David L. Luck – February 20, 2013
Manufacturers are not required to provide bilingual product warnings.

Navigating the Daubert Landscape
By Marjorie A. Farris and Kristen K. Orr – February 20, 2013
Evolving trends concerning Daubert's role in class-certification proceedings.

Hungry for Standards?
By Antonio Gallegos – February 20, 2013
The Food Safety Regulations will establish uniform safety standards for the food industry.

A Closer Look: Federal Courts Jurisdiction and Venue Clarification Act
By James C. Barton Jr., Alan D. Mathis, and Zachary D. Trotter – February 20, 2013
Intended to "bring more clarity" to jurisdictional issues, the act also raises important questions.

The CPSC Database Approaches Second Birthday
By Josh Johanningmeier, Kerry Gabrielson, and Tristan Breedlove – February 21, 2013
Love it or hate it, the database is not going away. A look back at its brief and controversial history and what the future may hold.

Court Enjoins CPSC from Publishing Materially Inaccurate Report
By Tonya G. Newman – January 18, 2013
The U.S. District Court for the District of Maryland recently prohibited the Consumer Product Safety Commission from publishing a report implicating a consumer product, finding that it violated the Administrative Procedure Act.

2012

Bankruptcy Trusts and Asbestos Litigation
By Lee Blanton Ziffer – June 11, 2012
As asbestos litigation stretches into its fifth decade, the largest mass tort in U.S. history has shown no signs of slowing down.

Preemption Cases: 2011's El Nino Flood
By Jim O'Reilly – June 11, 2012
If the Supreme Court's flow of decisions were measured like weather, 2011 was the El Nino flood of preemption case law affecting products liability.

Wisconsin's Tort Reform: A Victory for Manufacturers
By Allen C. Schlinsog Jr. – June 11, 2012
Within the first month of taking office, Wisconsin Governor Scott Walker signed into law the most sweeping changes to products liability law Wisconsin has ever seen.

Government Action Does Not Equal Proximate Causation
By Knight S. Anderson – June 11, 2012
The EPA has listed listed trichloroethylene in the EPA Integrated Risk Information System database as carcinogenic to humans, but the action is a classification based on estimated risk and purpose, not a pronouncement of a presumption on proximate cause.

Perjury During Depositions and Its Consequences
By Jessalyn H. Zeigler and Allyn Rubright Gibson – June 11, 2012
A review of the federal and state rules of civil procedure shows a general failure to provide directly for sanctions when a party commits perjury during a deposition.

The Legal Environment for Hydraulic Fracturing
By Kevin M. Eddy – April 12, 2012
An increase in the number of lawsuits involving the chemicals used in the hydraulic fracturing process may follow a wide expansion of the procedure's use.

Taking and Defending Rule 30(b)(6) Depositions for Young Lawyers
By John A. Camp – March 30, 2012
The deposition of a corporate representative is a chance for the corporation being deposed to tell its story, but it has the potential to bind the corporation in ways it did not intend or anticipate.

2011

Reporting Product Occurrences to Canadian Authorities
By Julia Mercier and Cheryl Woodin – August 31, 2011
The Canada Consumer Product Safety Act has significant implications extending far beyond Canadian borders.

Food Labeling Remains Ripe for Consumer Fraud Class Actions
By Sarah L. Brew, Kristin R. Eads, and Steven B. Toeniskoetter – August 31, 2011
Food companies face vast scrutiny of their product labeling and advertising.

Matrixx Initiatives, Inc. v. Siracusano: Its Effect on Causation Evidence in Products Liability Cases
By Scott Elder and Travis Thompson – August 31, 2011
The Supreme Court's decision does not fundamentally alter the established framework for weeding out unreliable scientific causation evidence.

New Health Care Law Affects Medical Liabilities and Drives New Plaintiff Options
By James T. O'Reilly and Michele L. Young – August 31, 2011
The 2010 PPACA deepens the trench that separates injured plaintiffs from access to compensation under traditional medical malpractice law.

How Parent Corporations Can Be Directly Liable for a Subsidiary Product
By Jay P. Mayesh – August 31, 2011
The law of negligent undertakings offers a potential pathway of direct liability to a parent corporation's assets.

The Future of Strict Liability Law in Pennsylvania: Is a Change Foreseeable?
By Jodi Dyan Oley and Dennis P. Ziemba – May 31, 2011
Pennsylvania courts have intensified their analyses of the framework used to evaluate strict product liability claims.

Discovery Practice in Conflict with China's State Secrets Law
By Josh Johanningmeier and Patricia Wheeler – June 7, 2011
China's draconian state secrets law stands in the way of obtaining what would likely be seen as routine information in civil discovery.

A Global Outlook: FDA's Shifting Strategies to Address the Safety of Imported Goods
By Una Young Kang – June 7, 2011
Products regulated by the FDA are currently imported from more 300,000 foreign facilities.

Defending Mass Retailer Liability for Foreign-Sourced Goods
By Michelle Cheek – June 7, 2011
When products liability suits arise from poor quality control, domestic companies can find themselves in a precarious position when it comes to determining who will bear the loss.

Getting the Discovery You Need When It Is on the Other Side of the World
By Megan Jury and Sara Athen – May 27, 2011
There are no easy solutions for domestic litigants needing to acquire documents from a non-party in a foreign country.