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Category Archives: Products Liability

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Ice Resurfacer Poisoning Demonstrates High Summary Judgment Threshold

Posted in Litigation Trends, Products Liability, Rhode Island Courts

In DeLong v. Rhode Island Sports Center, Inc., et al., a former college hockey player successfully appealed a Rhode Island Superior Court decision granting an ice rink’s motion for summary judgment in a case alleging that he was poisoned by an ice resurfacer after finding that circumstantial evidence present in the record was sufficient to… Continue Reading

Massachusetts Stakes Out a Middle Ground and Allows Brand Drug Liability for Generic Drug Labeling Claims Upon a Showing of Recklessness and Serious Harm

Posted in False-Labeling Claims, Litigation Trends, Massachusetts Courts, Pharmaceutical and Medical Devices, Products Liability

The overwhelming majority of courts (including all seven federal circuits that considered the issue) have rejected the so-called “innovator liability” doctrine.[1]  In 2017, however, the California Supreme Court in T.H. v. Novartis Pharm. Corp.[2] unanimously recognized the doctrine holding that brand-name prescription drug manufacturers owe a duty to warn to consumers who use generic drugs.[3]… Continue Reading

Cumulative Exposure Theory Found Inconsistent with Test for Causation and Determined Not Sufficient Basis for Finding Substantial Factor

Posted in Asbestos Litigation, Products Liability, Uncategorized

In a recent case, the Ohio Supreme Court addressed the question of whether the “cumulative-exposure theory” satisfies the “substantial factor” test for a plaintiff to succeed on a claim for asbestos-related injuries. The standard in Ohio requires a plaintiff to demonstrate that exposure to the product of a certain defendant was a substantial factor in… Continue Reading

Trouble Brews in NYCAL after Summary Judgment Rejection

Posted in Asbestos Litigation, Litigation Trends, New York Courts, Products Liability

A March 22, 2018, denial of a defendant’s summary judgment motion in the New York City Asbestos Litigation (NYCAL) signals a drastic lowering of the product identification standards in that venue (and a possible strategic adjustment necessary in future defendants litigating there).   In Trumbull v. Adience, Inc., a former brewer sued Stavo Industries (“Stavo”)… Continue Reading

Eastern District of Louisiana Rejects Attempt to Defeat Federal Subject Matter Jurisdiction After Removal

Posted in Asbestos Litigation, Louisiana Courts, Products Liability, Uncategorized

A federal district court in the Eastern District of Louisiana recently held that it continued to have federal jurisdiction under the federal officer removal statute, even after the plaintiffs amended their petition to delete claims that gave rise to federal subject matter jurisdiction. The court reasoned that the original removal satisfied the proper requirements to… Continue Reading

Appeals Court Strikes Out Products Claim Filed by Estate of Former American League Rookie of the Year Mark “The Bird” Fidrych

Posted in Massachusetts Courts, Products Liability

  In a unanimous decision, a three-judge panel of the Massachusetts Appeals Court affirmed summary judgment against the estate of former Detroit Tigers’ pitcher, Mark Fidrych, in Pantazis v. Mack Trucks, Inc., Mass. App. Ct., No. 16-P-1497 (Nov. 27, 2017).  On appeal, the Court rejected the Estate’s argument that a component part manufacturer had a… Continue Reading

Connecticut Requires Expert Testimony for Proving Exposure Levels

Posted in Asbestos Litigation, Connecticut Courts, Litigation Trends, Products Liability, Uncategorized

For the first time since 1989[1], Connecticut’s Supreme Court addressed the plaintiff’s burden of proof in the asbestos context, in Wayne Bagley v. Adel Wiggins Group et al, SC 19835 (11/7/17).  In a win for defendants facing such claims, the court found that plaintiffs bringing claims pursuant to the Connecticut Product Liability Act (under both… Continue Reading

The Third Circuit Strips Some of the Protections of the “Bare-Metal Defense”

Posted in Asbestos Litigation, Maritime Law, Products Liability

Imagine this scenario:  Company X manufactures a “bare-metal” product. After the product is sold, the buyer adds defective asbestos-containing insulation manufactured by Company Y to the product, which is sold for its proper function. Unfortunately, an end-user is then injured by the insulation manufactured by Company Y.  The “bare-metal defense” suggests that the bare-metal manufacturer,… Continue Reading

Product Liability: California’s Consumer Expectation and Risk Benefit Test Applied in the Same Case

Posted in California Courts, Litigation Trends, Products Liability, Uncategorized

Defendant The Raymond Co. saw its summary judgment victory overturned by California’s 4th District Court of Appeal in a surprising turn of events in its ongoing product liability case in San Diego Superior Court. In its July 2017 decision, the 4th District held that The Raymond Co. failed to meet its burden to show that… Continue Reading

Fourth Circuit Joins Unanimous Federal Circuits – No Requirement That Government Prohibit Contractor From Warning About Asbestos For Government Contractor Defense To Apply

Posted in Asbestos Litigation, Litigation Trends, Products Liability

Recently, in Sawyer v. Foster Wheeler LLC, the Fourth Circuit held that a government contractor is entitled to federal jurisdiction, even in product liability failure-to-warn actions, based on the contractor’s assertion that it has a colorable federal defense of government contractor immunity. 860 F.3d 249 (4th Cir. 2017). The big takeaway from this case, however,… Continue Reading

Petitpas v. Ford Motor Co., et al.: A Look at the Evolving Landscape of Asbestos Litigation in California

Posted in Asbestos Litigation, California Courts, Litigation Trends, Premises Liability, Products Liability, Uncategorized

The Second District Court of Appeal, Division Four in Los Angeles handed down a decision in an asbestos case that involved appellate issues pertaining to causes of action for strict products liability and premises liability, primary and secondary (“take-home”) exposure, liability for replacement component parts, and proper jury instructions to be given in asbestos cases… Continue Reading

Rhode Island Superior Court Denies Plaintiff’s Motion to Preclude Expert Testimony in Products Liability Action

Posted in Asbestos Litigation, Litigation Trends, Premises Liability, Products Liability, Rhode Island Courts, Uncategorized

Plaintiff’s attempt to preclude testimony of expert witness in asbestos related products liability litigation meets impasse—court refuses to circumscribe competent experts to narrowly defined fields or specific licensure. On Friday, June 9, 2017, Presiding Justice Alice Gibney of the Rhode Island Superior Court, Providence County, issued a decision denying a plaintiff’s motion to preclude the… Continue Reading

Forum-shopping in Illinois? Think again. Cook County trial court erred in denying forum non conveniens motion

Posted in Asbestos Litigation, Products Liability

On June 13, 2017, the Illinois First District Appellate Court issued an unpublished opinion holding that a Cook County judge erred in denying a forum non conveniens motion where essentially the entire case rests not in Plaintiffs’ chosen forum of Cook County, but in Winnebago County.[1]   The doctrine of forum non conveniens is premised… Continue Reading

U.S. Supreme Court Sets the Stage For Jurisdictional Limitations in Product Liability Matters

Posted in California Courts, Litigation Trends, Missouri Courts, Pharmaceutical and Medical Devices, Products Liability

In a groundbreaking decision that follows closely on the heels of its jurisdictional decision in BNSF Railway Co. v. Tyrrell, 581 U.S. __ (May 30, 2017) (“Tyrrell”), the United States Supreme Court held that the California Supreme Court was wrong to let approximately 600 non-California residents join 86 state residents in a pharmaceutical claim against… Continue Reading

Recent Decision by the U.S. Court of Appeals for the Third Circuit Benefits Insurance Companies by Upholding Exclusions Provisions for Asbestos-Containing Products

Posted in Asbestos Litigation, Insurance Litigation, Products Liability, Professional Liability

Travelers Casualty and Surety Company (“Travelers”) dodged a bullet when a $36 million judgment entered against it was unanimously overturned by a recent Third Circuit ruling in General Refractories Co. v. First State Ins. Co., 2017 WL 1416364 (3d. Circ. 2017). Significantly, the Third Circuit held that Travelers had no obligation to indemnify its policyholder,… Continue Reading

Williams v. Yamaha Motor Co.: No Jurisdiction over a Foreign Company

Posted in California Courts, Litigation Trends, Products Liability, Uncategorized

In its recent decision in Williams v. Yamaha Motor Co., 851 F.3d 1015 (9th Cir. 2017), the Ninth Circuit affirmed dismissal against a Japanese manufacturer because it was not “at home” in the forum. This consistent application of Daimler provides the benefit of predictable results. In 2013, George Williams filed suit, on behalf of himself… Continue Reading

Ring the Bell – Another Defense Verdict For Fresenius in Dialysis Treatment Bellwether Trial

Posted in Massachusetts Courts, Pharmaceutical and Medical Devices, Products Liability, Professional Liability

On March 3, 2017, after less than four hours of deliberations, a Massachusetts federal jury found that Fresenius Medical Care was not liable for the 2012 death of one of their patients. The verdict drew to a close a four-week long bellwether trial, the second for plaintiffs who opted out of a $250 million settlement… Continue Reading

Recent Appellate Court Ruling Extends the Application of the Common Law Marriage Before Injury Rule to Apply in Florida’s Wrongful Death Claims

Posted in Asbestos Litigation, Complex Torts, Florida Courts, Litigation Trends, Products Liability, Toxic Tort

In a 2-1 opinion, the Fourth District Court of Appeal continued to apply the law which bars marrying into a cause of action, but a strong dissenting opinion and noted public policy concerns could trigger further review. In Florida, as in various other jurisdictions, the courts follow the common law marriage before injury rule. This… Continue Reading

WWJG Do? What Will Justice Gorsuch Do, With “All Exposures Contribute” Testimony in Toxic Tort Cases?

Posted in Litigation Trends, Products Liability, Toxic Tort

On January 31, 2017, President Trump nominated Judge Neil Gorsuch to the U.S. Supreme Court. Although time will tell, this post assumes he will make it through the Senate confirmation process, and take his place at 1 First Street, Northeast. Currently, Judge Gorsuch sits on the United States Court of Appeals for the Tenth Circuit,… Continue Reading

Does Increased Regulation of E-Cigarettes Threaten to Make the Vaping Industry Go Up in Smoke?

Posted in California Courts, Complex Torts, Litigation Trends, Products Liability

Recently, the Food and Drug Administration has regulated electronic cigarettes, making it illegal to sell e-cigarettes to anyone under 18. Similarly, California recently enacted legislation requiring a minimum purchase age of 21 for e-cigarettes. Tobacco critic Stanton Glantz argued in favor of the minimum purchase age, stating that “There’s no question that e-cigarettes aren’t as… Continue Reading

Manufacturers Benefit from Georgia Supreme Court Ruling on Take-Home Exposure

Posted in Asbestos Litigation, Litigation Trends, Products Liability

The Georgia Supreme Court has weighed-in on the issue of manufacturers’ liability for take-home exposure cases. In the opinion recently issued in CertainTeed Corporation v. Fletcher, the Court drew an unexpected distinction between a manufacturer’s duty to issue warnings and its responsibility to keep harmful products out of the stream of commerce. Justice Carol Hunstein,… Continue Reading

Recent Fifth Circuit Ruling a Relief to United States Government Equipment Suppliers

Posted in Asbestos Litigation, Complex Torts, Litigation Trends, Products Liability

It is no secret that, in many instances, injured tort plaintiffs would prefer to file their cases in state court as opposed to federal court. One of the many reasons for this preference is that the Federal Rules of Civil Procedure place express limits on the amount of discovery available to parties.  Further, the Federal Rules… Continue Reading

Distracted Driving Lawsuits: Apple’s Responsibility or an Attempt to limit Drivers’ Personal Responsibility?

Posted in California Courts, Litigation Trends, Products Liability

On December 23, 2016 in Santa Clara, California, in Modisette v. Apple, Inc., 16CV304364, the family of a five-year-old girl killed in a car crash on Christmas Eve 2014 filed a lawsuit against Apple alleging that Apple’s FaceTime application distracted a driver and caused the death of Moriah Modisette.  Like the majority of distracted driver… Continue Reading

The Trouble with Dying Declaration Affidavits in Asbestos Litigation: a Case Study

Posted in Asbestos Litigation, Products Liability

In asbestos litigation, often times a plaintiff’s sole evidence of product identification takes the form of an affidavit created shortly before the claimant passes away.  Typically called a “dying-declaration” affidavit, the document preserves the plaintiff’s written testimony for trial, thereby preserving his cause of action against the individuals and entities he believes were responsible for… Continue Reading