Monthly Releases

Generic Drug Warnings/Preemption - Contrary Opinions In Morris v. PLIVA, Inc., 713 F.3d 774 (5th Cir. 2013) the Fifth Circuit affirmed the trial court's dismissal of plaintiff's failure to warn claims in connection with her use of the generic drug metoclopramide (brand-name Reglan). Penny Morris took the generic drug from early 2006 thru July 2008, but ingesting the drug for more than 12 weeks had been contra-indicated on FDA approved labels since a 2004 update and by "black box" labeling since 2009. The generic's manufacturer PLIVA failed to adopt the 2004 FDA approved revisions. This...

The Ninth Circuit Court of Appeals recently held that since authorization for removal to Federal Court is provided by ? 1441(a) that the 30 day removal periods in ?? 1446 (b)(1) and (b)(3) are merely procedural limitations on removal, if they are triggered. Roth v. CHA Hollywood Medical Center, L.LC 2013 WL 3214941 Defendants in a class action filed a Notice of Removal on the basis of diversity and jurisdictional amount. The plaintiffs moved to remand on the basis that the notice was filed after the 30 day removal period. In opposing the motion defendants submitted a declaration of a woman...

The Seventh Circuit Court of Appeals held in a benzene case that the minimum exposure time to benzene in paint to be a cause of leukemia was a question of fact for the jury rather than for the court in deciding a Daubert motion. In Schultz v. Akzo Nobel Paints, LLC, 2013 WL 3214941, the plaintiff decedent was a painter in defendants' plant between 1981 and 1989. He was diagnosed with leukemia in 2005 and died in 2006. The Appellate Court held that the district court erred in granting defendant's motion for summary judgment after finding that plaintiff's expert's opinion that benzene at...

The Court of Appeals for the Third Circuit held that to determine the citizenship of an LLC the court must look to the citizenship of the limited liability company's members. In Johnson v. SmithklineBecham Corporation, 2013 WL 2456043, plaintiffs, Pennsylvania residents filed suit in the state court. Defendants removed the matter to the federal court asserting diversity jurisdiction. Plaintiffs then filed a motion to remand the action arguing that diversity jurisdiction was lacking and removal was improper because all of the defendants were Pennsylvania residents. The district court denied...

The United States Court of Appeals for the Seventh Circuit reversed a jury verdict for the defendant because defendants' counsel was allowed to argue that the lawsuit was part of a joint venture between the attorney for plaintiff and one of the expert witnesses. In Stollings v. Ryobi Technologies, Inc.,2013 WL 3964477 the plaintiff lost an index finger and portions of other fingers in a table saw accident and sued the saw manufacturer alleging that it defectively designed the saw because it failed to equip the saw with either of two safety features: a riving knife - a small blade that holds...

The Court of Appeals for the Sixth Circuit held that the U.S. Consumer Products Safety Commission scrutiny of the product in question was properly admitted in evidence. In Cummins v. Bic U.S.A., Inc., 727 f.3D 506 (6TH Cir. 2013), a 3-year old boy was severely burned while handling a Bic lighter. The plaintiff filed a motion in limine to prevent the defendant from offering evidence concerning the CPSC's investigation of the lighter and its subsequent determination that it did not present a hazard. Plaintiff relied upon 15 U.S.C. Section 2074(b) which provides: The failure of the Consumer...

The Court of Appeals for the Seventh Circuit reversed the exclusion of an expert's testimony as unreliable. In Schultz v. Akso Nobel Paints, LLC, 721 F.3d 426 (7th Cir. 2013). The plaintiff's decedent was a painter who used the defendant's products between 1981 and 1989. He was diagnosed with leukemia in 2005 and died in 2006. The district court excluded the expert's opinion and granted defendant's motion for summary judgment. That court had concluded that the expert's testimony was unreliable because he merely testified that benzene is both generally known to cause leukemia and,...

The Tenth Circuit Court of Appeals held that the district court improperly dismissed a case under the Forum Non Conveniens Doctrine because there was the possibility that dismissal based on the statute of limitations might occur in the other available forum. In Fireman's Fund Ins. Co. v. ThyssenMn. Const., 703 F. 3d 488 (10th Cir. 2012), defendant moved to dismiss plaintiffs' complaint under forum non conveniens on the ground that New Mexico was an inconvenient forum and that Canada provided a presently available adequate alternative forum. Plaintiffs had sued the same defendants in Canada...

The Seventh Circuit Court of Appeals reminded defendants making Rule 68 offers to specific and clear because ambiguities will be resolved against them. In Sanchez v. Prudential Pizza, Inc., 709 F. 3d 689 (7th Cir. 2013), defendant's rule 68 offer of the $30,000.00 in exchange for "all plaintiff's claims for relief" was accepted however the plaintiff then asked for costs and attorney fees as a prevailing party under Title VII of the Civil Rights Act of 1964. The district court held that the offer was unambiguous and therefore included the attorney fees. The Court of Appeals reviewed de novo...

The United States Court of Appeals for the Seventh Circuit ruled that an insured is entitled to coverage even though recovery is barred by statute. In TKK USA, Inc. v. Safety Nat. Cas. Corp., 727 F.3d. 782 (7th Cir. 2013) an insurance carrier denied coverage for a claim that the employer was negligent when the employee contracted Mesothelioma as a result of workplace exposure to asbestos. The defendant insurance carrier denied coverage on the ground, among others, that the claim was subject to a solid defense under Illinois Workers' Compensation statute barring such a suit. The District...

The United States Court of Appeals for the Fourth Circuit held that an insured contractor was a nominal defendant in a battle among five insurers as to who owed what in the one million dollar settlement of faulty construction claims and therefore the contractor did not have to give permission for the suit to be moved to Federal Court. In Hartford Fire Insurance Company v. Harleysville Mutual Insurance Company, 736 F.3d 255 (4th Cir. 2013) A suit was brought against the contractor for alleged defects in its work. That lawsuit was settled with the insurance carriers contributing subject to...

The Court of Appeals for the Seventh Circuit held that non-parties to a contract can enforce a forum selection clause. In Adams v. Raintree Vacation Exchange, LLC, 702 F.3d. 436 (7th Cir. 2012) the plaintiffs were 250 purchasers of time share interest in villas and a resort known as Club Regina in Baja, California from a Mexican company referred to by the parties as DTR. DTR no longer exists having become an affiliate of the defendant Raintree through a series of mergers. The court first held that Raintree as the parent of DTR's successor could enforce the forum selection clause. Starwood is...

The Court of Appeals for the Seventh Circuit awarded attorneys' fees to plaintiffs where defendants' Motion to Reconsider did nothing more than make the same arguments which were made in opposing a Motion for Summary Judgment. In Tkk Usa, Inc. v. Safety Nat. Cas. Corp. 727 F.3d. 782 (7th Cir. 2013) the district court granted summary judgment to the plaintiff on its claim for coverage under a policy of insurance issued by defendant and denied a motion for attorneys' fees finding that the denial of coverage was not unreasonable or vexatious and that the carrier did not act unreasonably or...