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Category Archives: Products Liability

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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

D.C. Court of Appeals Overturns Frye and Adopts Federal Rule of Evidence Rule 702

Posted in Complex Torts, Products Liability, Toxic Tort

The District of Columbia Court of Appeals recently adopted the standards found in Federal Rule of Evidence 702 (“Rule 702”), regarding the admissibility of testimony by expert witnesses, thereby replacing the Frye (“Frye”) test.  See Motorola Inc., et al. v. Michael Patrick Murray, et al., 2016 WL 6134870 (October 20, 2016)(“Motorola”). Washington D.C. is now… Continue Reading

Court Rules Monsanto Roundup Cases to Stay in Delaware

Posted in Delaware Courts, Litigation Trends, Products Liability, Toxic Tort

Judge Vivian L. Medinilla of the Delaware Superior Court recently denied defendant Monsanto Company’s motion to dismiss on the basis of forum non conveniens (“FNC”) in Barrera v. Monsanto Company.  This ruling, along with a similar ruling issued by Judge Andrea L. Rocanelli one day prior in Gilchrist v. GlaxoSmithKline, LLC, reaffirms and provides new… Continue Reading

Causation and Bare Metal Defenses Prove Effective as Asbestos Liability Shield

Posted in Asbestos Litigation, Products Liability, Toxic Tort

A recent ruling in an asbestos-related case provides an important lesson for defendants in framing their defenses. In Malone v. Air & Liquid Systems, et.al. (Report and Recommendation, C.A. No. 14-406-GMS-SRF (D. Del. Aug. 29, 2015)), a mesothelioma case pending in the U.S. District Court for the District of Delaware which involves allegations of asbestos… Continue Reading

U.S. Court of Appeals Reverses Summary Judgment in Lung Cancer Asbestos Case

Posted in Asbestos Litigation, Products Liability, Toxic Tort

On September 13, 2016, the United States Court of Appeals for the Third Circuit partially reinstated a plaintiff’s claims that his decedent developed lung cancer as a result of asbestos exposure that he allegedly experienced from work in the vicinity of switchgear components manufactured by Westinghouse Electric Corporation, a predecessor to CBS Corporation.  In re:… Continue Reading

Massachusetts Appeals Court Overturns Jury’s Verdict in Pelvic Mesh Case

Posted in Pharmaceutical and Medical Devices, Products Liability

On September 13, 2016, the Massachusetts Appeals Court decided Albright v. Boston Scientific Corporation by vacating a jury’s verdict in favor of Boston Scientific Corporation (BSC) and remanding the matter to the Superior Court for retrial. No. 15-P-633, 2016 WL 4736686 (Mass. App. Ct. Sept. 13, 2016). By way of background, the Plaintiff, Diane Albright,… Continue Reading

Massachusetts’ Supreme Judicial Court Upholds Record $63 Million Verdict in Children’s Motrin Case

Posted in Pharmaceutical and Medical Devices, Products Liability

  The Massachusetts Supreme Judicial Court has affirmed a record $63 million jury verdict against healthcare giant Johnson & Johnson for allegedly inadequate warnings about the health risks associated with Children’s Motrin. The facts underlying this remarkable verdict are undeniably tragic, but they also demonstrate just how important clear and comprehensive warnings are for product… Continue Reading