Monthly Releases

In In Re: National Prescription Opiate Litigation, Case No. No. 20-3075 (Sixth Cir. April 15, 2020), the Court issued a sharp rebuke to the federal judge overseeing the multidistrict litigation over the opioid crisis, a panel of the U.S. Court of Appeals for the Sixth Circuit said a pretrial ruling by U.S. District Judge Dan Polster was a "clear abuse of discretion." The panel overturned Polster?s decision in advance of a trial?scheduled to take place on November 9, 2020 with a dozen pharmacies as defendants?to allow plaintiffs to add new claims more than a year after a deadline to do so....

In P.W., a minor, by Dominque Woodson, his mother and guardian, et al. v. United States of America, Case No. 20-1142 (7th Cir. March 5, 2021), the Court found that the Northern Indiana District Judge did not err in granting defendant-government's motion for summary judgment in plaintiff's action under Federal Tort Claims Act, alleging that her child sustained permanent injuries to his left arm during birth.Woodson received prenatal treatment from Dr. Ramsey at NorthShore Health Centers. Ramsey informed Woodson that she would likely need to deliver her baby by C-section. Ramsey delivered P.W....

In Cherry v. Dometic Corporation, No. 19-13242 (11th Cir. February 2, 2021), the Court held that putative class representatives do not have to prove the existence of an administratively feasible method to identify absent class members as a precondition for certification of a class action under Federal Rule of Civil Procedure 23. Plaintiffs, owners of allegedly defective refrigerators manufactured by Dometic Corporation, as putative class representatives, moved to certify a class of similarly situated owners. The district court denied certification based on plaintiffs' failure to prove...

In Salon XL Color & Design Group LLC v. West Bend Mutual Insurance Co., Case No. 2:20-cv-11719 (USDC, ED MI, February 4, 2021), the District Court denied West Bend?s motion to dismiss and allowed the plaintiff hair salon's COVID-19 insurance suit to proceed. The Court distinguished between the policy's virus exclusion which bars business interruption coverage, and the policy's communicable disease provision which may extend coverage for the salon's losses. The hair salon was forced to close due to government closure orders issued in response to the pandemic. Salon XL sued West Bend in June...

In The Bend Hotel Development Co. LLC v. Cincinnati Insurance Co., Case No. 1:20-cv-04636 (USDC, ND IL, January 27, 2021), the District Court determined that Cincinnati Insurance Co. did not have to cover the plaintiff hotel company's pandemic-related losses, finding the hotel failed to allege that either COVID-19 or ensuing government shutdown orders caused ?physical damage" to its property.U.S. District Judge Elaine E. Bucklo said that although the policy does not have a virus exclusion, the plain language of the policy's terms is very clear that a direct physical loss or damage is a...

In Knight v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 19-1636 (4th Cir. January 6, 2021) the Fourth Circuit reversed the district court's order denying Boehringer's post-trial motion for judgment as a matter of law, finding that the plaintiff?s state-law fraud claim is preempted. After defendant Boehringer developed a drug called Pradaxa to help reduce the risk of stroke, the FDA approved the drug and its label. Betty Knight suffered complications from taking the drug and eventually died. Betty's children filed suit against Boehringer asserting a variety of state-law claims alleging...

In Hubbard v. Bayer Healthcare Pharmaceuticals Inc., No. 19-13087 (11th Cir. December 22, 2020), the Eleventh Circuit Eleventh Circuit rejected a suit on behalf of a 41-year-old who suffered a stroke while taking birth control pills, citing Georgia's learned intermediary doctrine.Here, 41-year-old plaintiff Karen Hubbard suffered a catastrophic stroke in 2012 caused by a blood clot to her brain -- a venous sinus thrombosis, a type of venous thromboembolism (VTE). She had been taking Beyaz, a birth control pill manufactured by Bayer. While she first received a prescription for Beyaz on...

In Torres v. First Transit, Inc., Case No. 18-15186 (11th Cir., October 22, 2020), a bus owned by First Transit struck a vehicle occupied by plaintiffs, who then filed a negligence claim for damages against First Transit. First Transit admitted liability and the jury awarded damages to both plaintiffs. The Eleventh Circuit vacated the district court's order denying First Transit's motion for a new trial, holding that when a party moving for a new trial based on a juror's nondisclosure during voir dire makes a prima facie showing that the juror may not have been impartial and thus was...

In Tabirta v. Cummings, 2020 IL 124798 (Ill. 2020), The question before the Court was whether the existence of one part-time employee who services a few of a defendant corporation's customers from his home in Cook County satisfies the "other office" or "doing business" prongs of section 2-102(a) of the Illinois venue statute. 735 ILCS 5/2-102(a) (West 2016).The plaintiff truck driver, a Cook County resident, was severely injured during a collision with a truck driven by an employee of the defendant corporation in Ohio. The defendant corporation did not have a registered office in Cook County...

In Mark?s Engine v. The Travelers, Case No. 20-cv-04423 (USDC, CD CA. Oct. 2, 2020), a California judge dismissed a Los Angeles eatery's suit seeking coverage from The Travelers Indemnity Co. of Connecticut for business losses stemming from the COVID-19 pandemic, finding that the virus hasn't caused physical loss ? and even if it had, the restaurant's policy has a virus exclusion that bars coverage.U.S. District Judge Andr‚ Birotte Jr. rejected arguments from plaintiff Mark's Engine Co. No. 28 Restaurant that the virus had physically damaged its property, saying that because its employees...

In Wisdom v. Easton Diamond Sports, LLC, Case No. 19-55742 (Ninth Cir. Oct. 8, 2020), the Ninth Circuit held that a District Court judge erred in striking class allegations in an action against a Thousand Oaks-based manufacturer of sporting equipment that, according to the complaint, misstates the weight of its baseball bats, yesterday, saying it was too early to declare that there are no common questions or that individual issues predominate because there had not yet been discovery.The memorandum opinion, by a three-judge panel that acted on an interlocutory appeal, vacated an order by...

In Mango v BuzzFeed, Case No. 19-446-cv (2nd Cir. August 13, 2020), the Court of Appeals basically said that omitting a small print photo credit can get you in big trouble under the copyright laws. The court affirmed an award of almost $74,000 against BuzzFeed, because its reporter had copied a photo from the New York Post website and removed the photographer's name.In addition to his ordinary copyright infringement claim, the photographer also asserted a separate claim, allowed under the Digital Millennium Copyright Act (DMCA), based on the removal of his identifying information. Gregory...

In Wallace v. Grubhub Holdings, Nos. 19-1564 & 19-2156 Cons. (7th Cir. August 4, 2020), the Seventh Circuit affirmed the trial court's granting defendant's motion to compel arbitration of plaintiffs' lawsuit alleging violations of Fair Labor Standards Act. The plaintiffs were defendant's drivers who delivered food that had been ordered either online or through mobile devices. These drivers had entered into agreements calling for arbitration for any and all claims arising out of their relationship with Grub Hub. The plaintiffs argued that the residual clause of section 1 of Federal...

A petition for a writ of mandamus was granted in In re: Ryse Claims Solutions, LLC, No. 19-2930 (7th Cir. August 3, 2020) because the District Court erred in transferring back to the Eastern California District Court a portion of plaintiff's action arising out of an employment contract, where plaintiff alleged violations of the Fair Labor Standards Act, as well as various violations of the California Labor Code. The contract contained a forum-selection clause providing that the plaintiff must bring claims against defendant in either Indiana state court or Indiana federal court. The record...

In Cheslow, et al. v. Ghirardelli Chocolate Co., Case No. 19-cv-07467- PJH, 2020 U.S. Dist. LEXIS 62044 (N.D. Cal. Apr. 8, 2020), a California federal judge dismissed a putative class action complaint challenging Ghirardelli Chocolate Co.'s labels on its cocoa-free white baking chips.Plaintiffs asserted they purchased Ghirardelli's "Premium Baking Chips Classic White Chips" under the impression that they contained "real" white chocolate, and that the product label, advertising, and marketing (including use of the term "premium"; references to "white" chips; and inclusion (until at least June...

In Hinterberger v. City of Indianapolis, No. 19-3365 (7th Cir. July 16, 2020), the Seventh Circuit affirmed the District Court?s granting of the defendant City?s motion for summary judgment in action alleging that defendant improperly withheld funds for plaintiff?s mixed-use commercial and residential construction project. In that case, the plaintiff failed to comply with Local Rule 56-1, which required a party opposing a summary judgment motion to provide a statement identifying determinative facts and factual disputes. The statement submitted by the plaintiff misrepresented evidence,...

In Carl Cieslikowski V. FCA US, LLC, No. 19-55679 (9th Cir. 2020), the jury awarded $500,000 in punitive damages arising out of the sale of an allegedly defective Jeep, and the trial court vacated that award. On appeal, the plaintiffs argued that the district court erred in determining that the evidence was inadequate to support the jury?s verdict on their fraudulent concealment claim. And the Ninth Circuit agreed, holding that a California magistrate judge improperly overturned the jury's $500,000 punitive damages award, and reversed in part.The Court reasoned that substantial evidence...

In a ruling that seemed disappointingly simple, Molson Coors Beverage Company v. Anheuser-Busch Companies, LLC, No. 19-2713 (7th Cir. 2020), the Seventh Circuit said Bud Light can continue to say that Coors Light and Miller Lite use corn syrup in their beers. Because . . . well, because they admit they do. Since the corn syrup is only used in the fermentation and is not on in the beer itself, Molson Coors argued, and the lower court earlier agreed, and constrained Bud Light from overstating its claims. So Bud Light could continue to say the Coors and Miller brands were "brewed with" or "made...

In Baker v. Atlantic Richfield Co., Nos. 19-3159 & 19-3160 Cons. (June 18, 2020) the Seventh Circuit held that the District Court erred in granting plaintiffs' motion to remand their cause of action to Indiana state court, where defendants had removed to federal court under 28 USC section 1442(a)(1) plaintiffs' action alleging that defendants or their predecessor entities had polluted soil in and around site of plaintiffs' later-built residence. Defendants could properly assert that they were entitled to government contractor defense to support removal of plaintiffs' lawsuit to federal court...

In Grodzitsky v. American Honda Motor Co, Inc, No. 18-55417 (9th Cir. April 29, 2020), a divided federal appeals court upheld a District Judge's decision to decline to certify a class of consumers who alleged their Honda Pilots had defective window mechanisms that could cause the windows to suddenly drop into the door frame. By a 2-1 vote, the 9th Circuit ruled that the plaintiffs, in seeking to establish their vehicles shared a common design defect, relied on a "fatally flawed," unreliable opinion from an expert witness.Plaintiffs relied on the expert opinion of an engineer in seeking to...

In GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC, SCt. No. 18?1048 (June 1, 2020), ThyssenKrupp Stainless entered into three contracts with F. L. Industries, Inc. for the construction of cold rolling mills at ThyssenKrupp?s steel manufacturing plant in Alabama. Each contract contained a clause requiring arbitration of any contract dispute. F. L. Industries then entered into a subcontract with GE for the provision of nine motors to power the mills. After the motors for the mills allegedly failed, Outokumpu Stainless USA, LLC (which acquired ownership of the plant), and...

In Imamura, et al v. General Electric Company, No.19-1457 (1st Cir. 2020), the First Circuit rejected a lawsuit brought by 150,000 Japanese individuals and businesses who said they were "economically devastated" in March 2011 when an earthquake unleashed a 45-foot wave that overwhelmed the plant, causing an explosion and a massive release of radiation. Under Japanese law, all claims related to the disaster must be brought against Tokyo Electric Power Co. (TEPCO), either in a lawsuit or an administrative proceeding. TEPCO had already paid out more than $80 billion in claims, partially...