Monthly Releases

In Davis v Ricola USA, Inc., Case No. 22-cv-3071 (USDC CD IL Sept. 26, 2024), the Central Illinois District Court concluded that the plaintiff suffered no injury and thus lacks standing. Accordingly, it dismissed the lawsuit for lack of subject matter jurisdiction.  At issue in the case was Ricola's marketing that its lozenges are "Made With Swiss Alpine Herbs." Plaintiff Lacie Davis alleged consumers paid more for Ricola products than they would have, if they had known the key cough-suppressant ingredient is menthol.  But, Illinois federal judge Colleen Lawless ruled that the...

In Bacher v. Boehringer Ingelheim Pharmaceuticals, Inc., 110 F.4th 95 (2d Cir. 2024), the Second Circuit considered whether a proposed consolidation of nine lawsuits in state court allowed the defendant to remove the case to federal court pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”) provision regarding mass actions. At issue was the provision in CAFA that confers subject matter jurisdiction in the federal courts for “mass actions … in which monetary relief claims of 100 or more persons are proposed to be tried jointly.”  28 U.S.C....

In Mack v. CooperSurgical, Inc., et. al., Case No. 1:22-cv-54-RAH, an Alabama federal judge has dismissed a Filshie Clips lawsuit against CooperSurgical Inc. and others, ruling that the claims are time-barred under the state’s two-year statute of limitations because the plaintiffs’ cause of action accrued by mid-2017, yet they did not file suit until January 2022. Here, CooperSurgical and Femcare denied the allegations, and argued that the claims are preempted by the Medical Device Amendments to the Food, Drug & Cosmetic Act, U.S. Food and Drug Administration regulations and federal laws...

In Douglas v. Atrium Medical Corp., No. 3:23-CV-0747, 2024 WL 4364950 (M.D. Pa. Sept. 20, 2024), a Pennsylvania District Judge dismissed strict liability claims from the lawsuit alleging injuries caused by Atrium Medical’s ProLoop and ProLite hernia mesh, ruling that they fall within the exemption in comment k to Section 402A of the Restatement (Second) of Torts for “unavoidably unsafe” products. In her order, Judge Julia K. Munley of the U.S. District Court for the Middle District of Pennsylvania agreed with a magistrate judge who predicted that the state’s high court would follow decisions...

In Stephanie Salcedo et al., vs Cyprus Amax Minerals Company, et al., Cook County, Illinois Case No. 20 L 004505 (October 3, 2024), an Illinois state court judge has denied Johnson & Johnson’s motion for a new trial in an asbestos-containing talcum powder case that ended in a $45 million verdict earlier this year.  In an October 3rd docket entry, the Illinois Circuit Court indicated that the defendant’s motion for a new trial had been denied, upholding the jury verdict’s and $45 million award in the asbestos-related death of a mother of six. The Illinois state court jury reached the...

In Osseo Imaging, LLC v. Planmeca USA Inc., Case No. 2023-1627 (Fed. Cir. Sept. 4, 2024), the Federal Circuit addressed whether expert witnesses must have acquired skill in the relevant art at the time of invention to qualify as a “person of ordinary skill in the art.” The case concerned 3D imaging systems produced by the appellant, Planmeca, which the jury found had infringed patents for orthopedic imaging systems owned by the appellee, Osseo. The district court denied Planmeca’s motions for judgment as a matter of law as to invalidity and noninfringement, and rejected Planmeca’s argument...

Third Circuit Court of Appeals issued its ruling in Monsanto’s favor in Schaffner v. Monsanto No. 22-3075 (3d Cir. August 15, 2024), unanimously finding that the state-based failure-to-warn claims in this case are expressly preempted by the FIFRA statute. This decision creates a circuit split with prior decisions of the Ninth and Eleventh Circuits on the central legal issues in the Roundup litigation and underscores the need for consistency on this important topic from a federal standpoint.  Here, David Schaffner, Jr. and Theresa Sue Schaffner filed a lawsuit against Monsanto...

In Faxel v. Wilderness Hotel & Resort, Inc., No. 21-1967 (W.D. Wis. August 15, 2024), plaintiffs filed a lawsuit against the defendant alleging negligence, premises liability, and loss of consortium after plaintiff was injured on a water slide at the defendant’s hotel. The scheduling order set a deadline for the Faxels to disclose their liability expert, but the date came and went with no disclosure. Almost three months later, they sought an extension of time to name an expert. A magistrate judge, presiding by consent, denied the motion. The district court then granted the defendant's...

On August 2nd, Illinois Governor JB Pritzker signed S.B. 2979 to amend the Biometric Information Privacy Act (BIPA) immediately to define the repeated collection of the same biometric data without consent as a SINGLE, COLLECTIVE violation of the Act–this is a significant change. The precedent set by the Illinois Supreme Court in February 2023 in Cothron v. White Castle Sys. Inc., which permitted the plaintiffs to seek damages for “every scan or transmission” of biometric information without consent, is altered by this amendment. It will, in fact, reduce the amounts of damages sought by...

In Justice v. Bestway (USA) Inc., et. Al., Case No. No. 4:22-cv-00050-AGF (USDC ED MO, August 8, 2024), a Missouri federal judge trimmed the bulk of a couple's claims against the retailer that sold the pool in which their two-year-old daughter drowned, but ruled that the retailer could not escape strict liability claims under the state's "innocent seller" statute.  Here, Third-Party Defendant grandmother Mary Flake purchased an above-ground pool from the Rural King store in Wentzville, Missouri. Mrs. Flake did not speak to any Rural King employees about the pool before she purchased it. Her...

In In re Kia/Hyundai Vehicle Theft Litig., Case No. 8:22-ML-03052-JVS, several hundred insurance companies are seeking to recover more than $1 billion in claims paid to drivers whose cars were allegedly easy to steal or vandalize.  The insurers raised alleged consumer protection, breach-of-warranty, negligence, and fraud claims against US units Kia America Inc. and Hyundai Motor America, as well as their overseas parents, Hyundai Motor Company and KIA Corporation. Certain 2011–2022 Kia and Hyundai models have no engine immobilizer — an electronic security device that makes it harder to start...

In Chatman v. Euromarket Designs, Inc. d/b/a Crate & Barrel, Case No. 2018 CH 09277, on July 9, 2024, a Cook County, Illinois judge gave his final signoff to a $2.4 million deal ending litigation accusing Crate & Barrel of violating Illinois' biometric privacy law by requiring employees at its stores to scan their fingerprints to track their time worked without first securing their written, informed permission. The settlement resolved the class claim alleging that workers were required to provide their biometric identifiers and/or biometric information for timekeeping purposes...

In DiCroce v. McNeil Industries, 82 F. 4th 35 (1st Cir. 2023), the plaintiff brought a class action against a supplement manufacturer and its parent company, Johnson & Johnson, asserting state law deceptive trade practices and false advertising claims related to Lactaid, a supplement for individuals with lactose intolerance. The plaintiff argued Lactaid’s labeling was misleading because the product treats a disease, is therefore a drug rather than a supplement, and the label misled consumers into believing Food & Drug Administration (“FDA”) approval of the product was not required....

In In re Paraquat Products Liability Litigation, No. 3:21-MD-3004-NJR, 2024 WL 1659687 (S.D. Ill. Apr. 17, 2024), Chief U.S. District Judge Nancy Rosenstengel granted summary judgment in favor of the defendants in four cases following the exclusion of the plaintiffs’ expert testimony. To establish the epidemiological evidence for the causal relationship between paraquat and Parkinson’s disease, plaintiffs retained just one expert, Dr. Martin Wells. Both Federal Rule of Evidence 702 and Daubert require that “the [expert’s] testimony is the product of reliable principles and methods.” The...

In Owens V. Unified Government Of Wyandotte County And Kansas City Kansas Case No. 23-3048 (May 7, 2024), the Plaintiff asked the 10th Circuit to vacate the jury's verdict in favor of defendants and hold that the district court abused its discretion in denying his motion for a mistrial and new trial. Plaintiff's lead attorney had conducted all pretrial litigation and was expected to handle most of Plaintiff's witnesses and closing argument. However, midway through the four-day trial, Plaintiff's lead attorney contracted COVID-19 and resorted to remote participation for the remainder of...

In John Carson v. Monsanto Company District Court Docket No: 4:17-cv-00237-RSB-CLR, USCA11 Case: 21-10994 (11th Cir. May 8, 2024), the11th Circuit refused to rethink a February ruling that rejected claims that the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) blocked plaintiff John Carson from arguing that the company should have warned customers about the health risks of using Roundup. The Court denied Monsanto’s Petition for Rehearing En Banc.  In its earlier ruling, the 11th Circuit rejected Monsanto’s argument that the FIFRA blocked a state-level claim from John Carson...

In In Re: Recalled Abbott Infant Formula Products Liability Litigation, No. 23-2525 (7th Cir. April 2, 2024), The 7th Circuit held that the District Court did nor err in dismissing for lack of standing plaintiffs’ action, alleging economic harm stemming from as voluntary recall of defendant’s infant formula that plaintiffs claimed exposed them to potential risk of injury due to fact that formula was produced at defendant’s plant under unclean conditions. The parent plaintiffs had urged the 7th U.S. Circuit to conclude they had legal standing to sue Abbott, arguing that they would not have...

In Q Excelsior Italia SRL v. Zurich Am. Ins. Co., No. 23-1451, (7th Cir. Mar. 20, 2024), it was determined that a luxury Italian hotel has no coverage for certain COVID-related losses  The Seventh Circuit affirmed, saying that the hotel's own filings contradicted its claim that it suffered a covered physical loss.  Here, the owner of the Westin Excelsior Rome hotel, has sued its insurer, defendant Zurich American Insurance Company, alleging wrongful denial of coverage for losses the hotel suffered in the early weeks of the COVID-19 pandemic. Defendant Zurich moved to dismiss for failure to...

In American Sentinel Insurance Company v. National Fire & Marine Insurance Company, No. 23-55175 (9th Cir.  Feb. 12, 2024), the 9th Circuit reviewed de novo the trial court’s granting Plaintiff American Sentinel’s motion for summary judgment and denying National Fire’s cross-motion for judgment on the pleadings.  The Court concluded that Big Brother Transportation, Inc. fell within the definition of “insured” in National’s insurance policy for Tengfei Trucking, Inc. The National Policy defined “insured” to include “[t]he owner or anyone else from whom you hire or borrow a covered ‘auto’...

In Allen v. Armstrong Containers, Inc., No. 22-2637 (7th Cir. Feb. 9, 2024), a toxic tort case, about 170 individuals alleged that they were harmed by lead paint pigment. The plaintiffs, who were joined together in a single complaint, brought claims against several manufacturers of the pigment. After a series of trials, the district court granted summary judgment for the defendants on all claims. The court then extended these rulings to the remaining plaintiffs on law of the case and issue preclusion grounds. The United States Court of Appeals for the Seventh Circuit affirmed the district...

In Mikoff v. Unlimited Development, Inc., 2024 IL App (4th) 230513 (February 1, 2024), the Fourth District Illinois Appellate Court affirmed in part and reversed in part an order compelling arbitration. There, plaintiff filed a lawsuit against defendant, a skilled nursing facility, alleging that the defendant was responsible for the decedent’s premature death from Covid-19. The trial court granted defendant’s motion to compel arbitration and plaintiff appealed. The appellate court affirmed the trial court’s referral of decedent’s claims under the Survival Act to arbitration but reversed the...

In Scott v Kookmin Best Insurance Co., Case No. 23-1654 (3rd Cir. Jan. 29, 2024), the Third Circuit ruled that the insurer of a Philadelphia deli does not have to indemnify the owner for a $900,000 settlement between him and a man who sued after being stabbed on the premises, reasoning that the victim was barred from relitigating the same issues with the insurance company. Here, Scott sued the David’s Deli in PA state court for injuries he sustained while patronizing the restaurant, which also served alcohol, when he was stabbed by an intoxicated patron. The deli’s insurer, Kookmin joined...