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Products Liability Litigation

Practice Points

What you need to know in a quick-to-read format. Find all of the Products Liability Litigation Committee’s Practice Points in this archive.


The Robots Are Coming: AI Large Language Models and the Legal Profession
By Lee B. Ziffer – February 28, 2023
AI-based discovery, legal writing, and legal analysis are all here or on the horizon, so it’s best to be ready for the coming revolution.


Changing the Narrative: Appreciating the Importance of Civility Throughout Our Profession
By Katherine Handy – June 27, 2022
There is great strength in knowing that you can be both an outstanding lawyer and an outstanding human being.


A Guide to Managing Product Recalls
By Stefanie Holland – August 24, 2021
The scope of a recall may vary depending on the product and set of facts, and the days following the report of an initial incident tend to follow a pattern and require immediate attention. 


Potential Impact of Remote Trial Testimony on Forum Non Conveniens
By Nicholas S. Graber – June 9, 2020
In the age of COVID-19, and likely after the pandemic has abated, arguments for virtual testimony should be expected in opposition to motions citing the convenience of witnesses as a basis to transfer venue.

Discoverability of Workplace Incident Reports
By Dana V. M. Engel – June 9, 2020
While incident reports can be important sources of information, it is worth considering the rules of the relevant jurisdiction before seeking them or attempting to withhold them as privileged.

Dealing with Essential Business Inquiries During COVID-19
By Annie Chuang and Chris Johnson – April 14, 2020
Some tips you can give your clients on how to address external and internal questions on whether they are essential to public health and safety.


“Steps” for Discovery: Subpoenaing Wearable Technology Data
By Meghan A. Rigney – May 14, 2019
Some direction on how to track down data from two of most popular wearable health monitors on the market today.

Defense Strategies for Winning on the Statute of Limitations
By Whitney Frazier Watt and Robin E. McGuffin – May 14, 2019
For defendants, the statute of limitations can be a powerful tool.

Tips and Strategies to Improve Your Depositions
By Kimberly L. Beck – April 9, 2019
A few ways to help sharpen your skills and become better advocates for your clients.

The Developing Landscape of Data Protection Laws and Enforcement Actions 
By Alfred J. Saikali – April 9, 2019
It can be difficult to keep abreast of this quickly emerging body of law and regulation, but this discussion of recent notable decisions may help.

Third Circuit Recognizes Viability of “Snap Removal” by In-State Defendant
By Katie A. Fillmore – February 5, 2019
The Third Circuit recognized “snap removal,” a litigation tactic where a defendant removes a state court claim to federal court based on diversity of citizenship before any forum defendants are served. 

Applying Bristol-Myers Squibb to Class Actions
By Joan R. Camagong – February 5, 2019
District courts are now divided as to the application of BMS to unnamed, non-resident plaintiffs in class actions.


Failure to Warn Preemption Arguments Gaining Momentum
By Lauren Treadaway – August 22, 2018
Branded pharmaceutical drug warning labels may be changed based on “newly acquired information” without first obtaining FDA approval.

Abusive Briefing: Motions, Responses, and Replies—Oh, My!
By Kevin Underhill – August 22, 2018
The first sign of approaching disaster was a motion asking for leave to exceed the page limit.

How to ENGAGE the Jury During Voir Dire
By Samuel L. Felker – August 22, 2018
If you are not fortunate enough to have Dr. Jason Bull or another celebrity jury consultant at your side, your best chance of success is to ENGAGE with the jurors.

New Online Methods for Jury Research
By Ann T. Greeley – July 31, 2018
Test your next case using some of these methods.

Personal Jurisdiction: Clinical Trial Contacts after BMS
By Jennifer L. Greenblatt and Edward J. Dumoulin – June 29, 2018
Courts have been left to sort out what, if any, in-state contacts would support specific jurisdiction over suits brought by out-of-state plaintiffs against out-of-state defendants.

Supreme Court Rules That Employee Class Action Waivers Are Valid
By Kacey L. Weddle – June 21, 2018
Only time will tell if employees will find ways to evade the Epic Systems decision through collective bargaining.

Civility in the Practice of Law
By Siobhan A. Cullen – May 22, 2018
Lawyers need to be reminded that manners always matter.

Six Tips for Legal Teams Retrieving Medical Records
By Natalie Baker – May 12, 2018
Streamlining medical-record retrieval has significant advantages and requires an investment of resources, time, and expertise.

Supreme Court Clarifies Two-Decade Circuit Split Involving Class Actions
By Christopher K. Friedman – May 8, 2018
The decision in Cyanwill certainly lead to the increase of class-action securities litigation in state court.

The Changing Regulatory Landscape of Blockchain Technology
By Jennifer M. Moore – April 10, 2018
The advent of blockchain technology within the past decade has left investors and regulators with varied emotions—ranging from intrigue, to confusion, to indifference.

Dietary Supplement Labeling
By Daniel S. Wittenberg – April 10, 2018
A discussion of some of the statements required by the FDA on a dietary supplement label.

Retrospective vs. Prospective Amendments: When Does New Federal Legislation Impact My Case?
By Tali L. Katz – March 28, 2018
Two Supreme Court cases provide the framework that attorneys should use to answer this question.

Understanding the Marital-Communications Privilege When Invoked by a Consortium Plaintiff
By Brenda A. Sweet – March 19, 2018
Do not let the privilege leave you flummoxed at deposition.

Class Actions: The As-Yet-Unknown Impact of BMS
By Celeste M. Brecht – March 7, 2018
Early decisions illustrate the new jurisdictional divide.

Closing the Law School/Law Firm Gap: Five Tips for Time Management
By Julie Becker – February 9, 2018
When associates actively try not to multitask, they get more (and better) work done in less time.

Using Computer-Generated Animation and Simulation Evidence at Trial: What You Should Know
By Caroline D. Walker – January 11, 2018
While animations and simulations can greatly increase jurors’ understanding of complex issues, they can also be a distraction and carry more influence than they should.


Three Emerging Risks and Regulations Affecting Fitness Trackers and Wearable Devices
By Jean Patterson and Elizabeth Monahan – December 15, 2017
What are the issues worth flagging before the next Cyber Monday rolls around?

Pick Your Prejudice: The Pace Factors’ Effect on a Plaintiff’s Potential Claim Dismissal
By Allison M. Stevenson and Trae S. Weingardt – December 3, 2017
Both parties may want to give serious consideration to the timing and manner of dismissals.

Voices of Recovery Podcast Series
By ABA CoLAP – November 10, 2017
The ABA Commission on Lawyer Assistance Programs debuted the first of a series of podcasts that will address substance use disorders, mental health issues, addiction, and recovery issues. Episode 1 features attorney Laurie Besden, the Executive Director of Lawyers Concerned for Lawyers of Pennsylvania, who shares her battles with alcohol and drug addiction.

Subject Matter Jurisdiction: Diversity–Time to Cross Your "T"s" and Dot Your "I's"
By Loren W. Fender – November 1, 2017
The fundamentals of pleading diversity jurisdiction from a federal court judge.

Good Storytelling Can Improve Litigation Strategy
By Lisa A. Reppeto – October 20, 2017
How to appeal to a jury when a story must be told within the confines of evidence.

A New Attorney’s Brief Guide to Assessing the Timeliness of a Products Action
By Hayley J. Reese – September 19, 2017
Seeing beyond the statute of limitations.

Expert Witness Deposition Preparation
By Peggy Smith Bush – August 30, 2017
Your efforts to build a knowledge-base early on will help you formulate questions and put the testimony in context.

Confronting and Limiting the Impact of “Bad” Company Documents
By Janelle L. Davis – August 20, 2017
Documents are always readily accessible in an age when “deleted” documents are never truly gone.

Fitness Nutrition Products: Conventional Foods or Dietary Supplements?
By Emily M. Adams – August 15, 2017
A product’s categorization determines the FDA enforcement used to regulate it.

Waste Class Actions: The Line Between Dissatisfaction and Actionable Injury
By Betsy Stone – August 8, 2017
Does more equal better?

The Changing Landscape of Personal Jurisdiction
By Celine L. Shirooni, with Robert L. Duckels – July 17, 2017
The U.S. Supreme Court has tightened personal-jurisdiction holdings that may have a cooling effect on forum shopping.

FDA Regulation of Mobile Medical Apps
By Julie Davis – July 17, 2017
Health-related app use is on the rise, and both the FDA and FTC have issued guidance to help avoid potential risks to patients.

Streamlining Legal Research as a Young Lawyer
By Lucas T. Rael – June 20, 2017
It’s one of the skills most central to a litigator’s practice.

Resolving Fictitious Party Pleading after Removal
By Stephen C. Rogers – June 13, 2017
Diligence wins the day.

The Potential Litigation Risks for Direct-to-Consumer Genetic Tests
By Scott A. Elder and Aliyya Z. Hague – June 5, 2017
Since the completion of the human genome project, individuals have been clamoring for ways to test their genetic predisposition to future disease.

Protecting the Record: Sealing Confidential Documents
By Ingrid Evert and Jodi Munn Schebel – May 5, 2017
Product liability suits lend themselves to the potential for disclosure of proprietary documents.

Warning: California’s Prop 65 Chemical List Continues to Expand
By Alan D. Mathis – April 25, 2017
The state is required to update the list annually.

Limits on “Reasonable Alternative Design” in Product Defect Cases
By Katherine A. Kelter – April 24, 2017
To prove the harmfulness of a product, one must show that a safer design could have reduced or prevented harm.

Food Industry Employers Beware: Whistleblower Claims Under FSMA Are on the Horizon
By John F. O’Brien III – March 30, 2017
OSHA lays out an ambitious plan to resolve FSMA whistleblower complaints.

Contaminated Medical Devices—Duodenoscope Litigation and Beyond
By Julie Davis – March 2, 2017
A group of claims has occurred over the last few years over CRE infections.

Is the Consumer Product Safety Commission in Transition?
By Charles E. Joern – February 28, 2017
The Trump White House brings potential but not necessarily immediate changes.

Taking Depositions Like an Experienced Attorney
By Suzanne E. Billam – February 14, 2017
6 techniques to guide you through a potentially nerve-racking experience.

Rethinking the Timing of Expert Retention
By Jordan Tabak – February 6, 2017
The earlier, the better.

Top 10 Practice Pointers for Dealing with E-Discovery
By Carolyn Purwin Ryan – January 23, 2017
From litigation holds to foreign law implications.

What Are Your Professional Goals for 2017?
By Ashley Brathwaite – January 11, 2017
Usher in the new year with some practical resolutions.

2015 Amendments to the Federal Rules of Civil Procedure
By J. Ben Segarra – January 3, 2017
Three alterations stand out as particularly worthy of the wary litigator’s attention.


The Leaning Tower of San Francisco
By Ira J. Gonzalez – December 23, 2016
And other tales of high-rise construction defects.

PHOs/Trans Fats: Litigation Should Await June 18, 2018 Compliance Date
By Jessalyn H. Zeigler – December 22, 2016
In the meantime, the FDA should be petitioned regarding the science behind PHO levels in food products.

Tips for a Successful Interview
By Rachel S. Nevarez – November 22, 2016
Advice from a firm's hiring attorney.

How to Plan for the Ideal Product Inspection
By Ashley Webber Broach – October 26, 2016
When mishandled, the results can be disastrous.

The Magic of Fed. R. Evid. 902(11) and (12)
By Richard H. Willis and Ashleigh R. Wilson – October 26, 2016
Authenticating foreign documents in federal court the easy way.

Escaping Default: How to Set Aside a Default in Federal Court
By Bryan A. Coleman and Jennifer M. Moore – September 19, 2016
The timing of the motion to set aside will impact the applicable standard and evidentiary showing.

FDA Issues Revised Draft Guidance for New Dietary Ingredients
By Daniel J. Gerber – September 19, 2016
The clarifications on the Dietary Supplement Health and Education Act are projected to be released early 2017.

Government Contractor Defense: Military and Non-Military Applications
By Bryan A. Coleman and Jennifer M. Moore – September 12, 2016
With respect to product liability claims, the defense will likely be asserted primarily in the military context.

(Properly) In Pursuit of the Perfect Forum
By Chelsea R. Stanley – September 1, 2016

The Cautionary eDiscovery Tale Beneath the FBI's Clinton Email Probe
By David M. Stein – August 16, 2016

Preparing for a Corporate Representative
By Whitney Frazier Watt – July 26, 2016

Corporate Officer Liability under the FDCA
By Jessica B. Beringer – July 15, 2016

5 Steps to Getting Control of Your Work Day
By Angela G. Strickland – June 27, 2016

Will Arbitration Clauses in Consumer Contracts Become Extinct?
By Christopher A. Roach and Ira J. Gonzalez – May 25, 2016

Collection of Medical Records: A Primer for Attorneys
By Julie Davis – May 25, 2016

How to Take Advantage of "Seller's Exception" Statutes
By Rachel S. Nevarez – May 17, 2016

Five Creative Uses of Social Media
By Rachel Tallon Reynolds – May 9, 2016

9 Tips for Improving the Working Relationship Between the Attorney and Expert Witness
By Angela A. Meyer, Marta L. Villarraga, and Susan V. Vargas – April 18, 2016

FTC Targets Deceptive Conduct by Dietary Supplement Manufacturers
By Julie A. Davis – March 28, 2016

Chemical Manufacturers May Soon Be Subject to Stricter Regulations
By Alan D. Mathis – March 22, 2016

Sales Representatives: Greatest Asset or Biggest Liability?
By Karen M. Firstenberg – February 27, 2016

CPSC Regulatory Robot: At Your Service or At Your Own Risk?
By Josh Johanningmeier – February 18, 2016

Tolling Agreements as a Litigation Tool in Product Liability Cases
By Rachel S. Nevarez – January 3, 2016


DOJ Looks to Increase Individual Accountability to Enforce Food, Drug, and Cosmetic Act
By John F. O'Brien III – December 7, 2015

No Threat of Future Harm
By Kara L. McCall and Jessica B. Beringer – November 10, 2015

NHTSA's Proposed Civil Penalty Rules
By Amelia Ashton – October 26, 2015

Website Immunity under the Communications Decency Act
By Jenna A. Hudson – October 16, 2015

Circuit Split Regarding the "Coupon Settlement Provisions" of the Class Action Fairness Act
By Bryan A. Coleman – September 25, 2015

CPSC Approves Pilot E-Filing System for Imports
By Charles E. Joern Jr. – September 25, 2015

The Practical Consequences of Food Addiction in the Law
By Kurt D. Weaver and Daniel K. Covas – September 8, 2015

Hacking Today's Vehicles
By Patrick J. Cleary – August 19, 2015

A New Era: 3D Printed Medical Drugs
By Corey Lorenz – August 19, 2015

Time for a Makeover: Newly Proposed Cosmetic Safety Legislation
By Whitney Frazier Watt – July 17, 2015

Class Certification since Whirlpool and Sears
By Adrienne Coronado – July 17, 2015

Declining Honey Bee Population Has Chemical Industry Watchdogs Abuzz
By Alan D. Mathis – July 14, 2015

The Unpurchased Consumer Products Issue in Class Actions
By Elizabeth M. Chiarello and Jamie Gliksberg – June 10, 2015

Beware of "Subject To and Not Waiving" in Discovery Responses
By Laura Sexton – May 21, 2015

Supplements Industry Facing Increase Regulation, Litigation
By Brian Alexander Wahl and Whitt Steineker – May 13, 2015

Regulation and Litigation Surrounding E-Cigarettes
By Elizabeth V. McNulty – April 24, 2015

Sizing Up Food and Supplements Claims by Product Testing
By Alyssa L. Rebensdorf – March 23, 2015

Eastern District of Louisiana Denies Remand of NORM Mass Action
By David M. Stein – February 20, 2015

District Court Denies Takeda's Motion for a New Trial
By Shelby Feuerbach – January 28, 2015