Monthly Releases

In H1 Lincoln Inc. v. South Washington Street, LLC, Case No. SJC-13098 (January 24, 2022), the Massachusetts Supreme Judicial Court Massachusetts Supreme Judicial recently ruled that a limitation-of-liability provision provides no protection for defendants who willfully or knowingly engage in unfair or deceptive conduct in violation of G. L. c. 93A, ? 11, the Massachusetts version of the Consumer Fraud Act. The trial judge found for Plaintiff on its claim and granted specific performance. After finding that Defendants' violations of the statute were willful or knowing the judge doubled the...

In, Bensenberg v. FCA US LLC, No. 20-3407 (USDC CD IL April 8, 2022, the Seventh Circuit reversed and remanded the District Court's grant of summary judgment. There, the trial court erred in granting the defendant-manufacturer's motion for summary judgment in plaintiff's product liability claim for injuries sustained in one-car accident, when plaintiff's vehicle's front airbag did not deploy after vehicle hit concrete post The trial court had previously granted defendant's motion in limine to exclude plaintiff's expert's opinion that vehicle's airbag was defective. While trial court reasoned...

Last month a federal court jury in the Southern District of California (normally a conservative forum by California standards) awarded $85 million to the family of a California man who died in 2015 after a confrontation with San Diego County sheriff's deputies. The jury's verdict came in a negligence and wrongful death lawsuit filed by the family of Lucky Phounsy against the county and sheriffs. On April 13, 2015, Phounsy, 32, "began experiencing symptoms of a mental health crisis" and called 911 "to report that unknown assailants were trying to harm him," according to the complaint filed on...

In LeDure v. Union Pacifi c Railroad Co, U.S. Supreme Court, No. 20-807, The U.S. Supreme Court in a 4-4 split on Thursday affirmed a lower court ruling that said a train that is stopped is not "in use" under a federal labor law, absolving Union Pacific Railroad Co of liability for a worker's injuries. The divided court upheld a 2020 ruling by the 7th U.S. Circuit Court of Appeals in a single sentence order, and did not issue an opinion or say how individual justices voted. Justice Amy Coney Barrett, who was on the 7th Circuit when it decided the case, did not participate. Railroads can be...

In Owners Insurance Company v. Scates Builder, LLC, Case No. 5:21-cv-00060-CHB (USDC ED KY May 2, 2022), the District Court declined to exercise its discretion under the Declaratory Judgment Act, 28 U.S.C. ?2201 and dismissed the plaintiff insurer's suit seeking a declaration that declaration that certain insurance policies do not provide coverage to Scates Builders for the acts alleged by the Homeowners in two underlying lawsuits brought by separate home buyers and pending in Kentucky state court. In a detailed 25 page opinion, the Court engaged in an extensive analysis of the "Grand Trunk"...

In General Motors, LLC v. Buchanan, Docket No. S21G1147 (June 1, 2022), the husband of Marie Buchanan sued General Motors ("GM"), alleging that a defect in the electronic stability control system of her 2007 Chevy Trailblazer caused it to crash, resulting in her death. Several years into the case, Buchanan sought to take the deposition of Mary Barra, the CEO of GM, pointing to her statements that she took responsibility for overhauling GM's response to vehicle defect issues, and that she promised to personally review all death inquiries. GM moved for a protective order, submitting an...

In Reinitz v Kellogg Sales Co., No. 1:21-cv-01239-JES-JEH (USDC CD IL, June 2, 2022), the trial court dismissed a proposed class action accusing Kellogg Co of defrauding consumers about the content of its Frosted Chocolate Fudge Pop-Tarts, one of several lawsuits challenging how it markets its toaster pastries. In his decision, U.S. District Judge James Shadid in Peoria, Illinois, rejected plaintiff Roberta Reinitz's claim that Kellogg's labeling, including an image showing a chunk of fudge, violated federal and state consumer protection laws. Reinitz, of Chatsworth, Illinois, alleged that...

In Iglesia v. Tootsie Roll Industries LLC, No. 20-cv-18751 (USDC, D NJ. October 18, 2021), the Disctrict Court dismissed plaintiff's slack-fill class action claims against the manufacturer of Junior Mints and Sugar Babies products. Plaintiff Iglesia purchased Junior Mints in 2017 and claimed that the boxes of the challenged products were about forty-five percent empty. He brought suit under a litany of alleged violations related to this area of empty packaging, called slack-fill. On October 18, the court dismissed each of Iglesia's claims, holding that the complaint was not pleaded with...

In Mark Blackburn v. Shire US Inc, et al, Case No. 20-12258 (11th Cir. November 29, 2021), the Eleventh Circuit reversed the District Court's grant of summary judgment in favor of the defendant drug manufacturer on plaintiff's failure to warn claim and sent the case to the Alabama Supreme Court for review on a couple of questions of Alabama state law. Plaintiff is a Professional Golfers' Association instructor who has Crohn's disease and he brought a failure to warn claim against Shire U.S. Inc. over its anti-inflammatory drug LIALDA claiming that the pharmaceutical company had a duty to...

In Vasadi v. Samsung America, Case No. 2:21-cv-10238 (D NJ November 29, 2021), the District Court determined, in a proposed class action over allegedly shatter-prone camera glass in Samsung Galaxy S20 phones, that nearly all listed plaintiffs must arbitrate their claims. But two plaintiffs who opted out of the arbitration agreement may proceed in a New Jersey federal court, according to an unpublished order. Samsung Electronics America Inc., according to Jean Vasadi and 19 others, advertised the professional-grade camera but failed to warn that the phones' back camera glass may unexpectedly...

In Bradley Hotel Corp. v. Aspen Specialty Ins. Co., No. 21-1173 (7th Cir. December 9, 2021), the Seventh Circuit found that the District Court did not err in granting defendant-insurance company's motion to dismiss plaintiff-insured's action, alleging that defendant wrongfully denied plaintiff insurance benefits for COVID-19-related losses arising out of customer cancellations of business services based on executive orders issued by Gov. Pritzker that suspended in-person dining and gatherings of 50 or more people. While policy provided coverage for "direct physical loss" of or damage to...

In Thiam v. T-Mobile U.S., Inc., Civil Action No. 4:19-CV-00633 (E.D. Tex. Apr. 20, 2021) a Texas District Court ruled that a Korean unit of LG Electronics cannot use a jurisdictional argument to escape a products liability action where the plaintiff professional basketball player claimed that his cell phone battery exploded, injuring his hand. After the state court action was removed, Defendant LG Chem, LTD of Korea ("LGC"), filed a Motion to Dismiss under Rule 12(b)(2). Federal Rule of Civil Procedure 12(b)(2) requires a court to dismiss a claim if the court does not have personal...

In Daigrepont v. Exxon Mobil Corp., 2021 CA 0534 (La. Ct. App. Dec. 30, 2021), the Louisiana Appellate Court reversed reversed a decision by a state trial court that granted summary judgment to the distributor/seller of a plug valve that allegedly failed and led to an explosion at an Exxon Mobil Corporation (ExxonMobil) refinery resulting in injuries to the claimant. The appeals court found that genuine issues of material fact remained as to whether the seller sold the plug valve at issue to ExxonMobil and whether ExxonMobil was a sophisticated user that did not require any warning. The case...

The United States Court of Appeals for the Sixth Circuit, applying Kentucky law, has held that a directors and officers liability policy does not provide coverage for a class action lawsuit brought against a gym alleging deceptive practices arising from the gym's membership contracts. See Global Fitness Holdings, LLC v. Navigators Mgmt. Co., Case No. 20-5774, 2021 WL 1884593 (6th Cir. May 11, 2021). The court of appeals held that the "staggeringly broad" language in the contract exclusion barred coverage for each of the seven claims asserted against the insured. The insured, a gym and...

In The Aluminum Trailer Co. v. Westchester Fire Ins. Co., No. 21-1538 (January 31, 2022), the Seventh Circuit affirmed the lower court's dismissal of the plaintiff trailer company's lawsuit brought against its insurer after the plaintiff was sued by a competitor for breach of contract. The District Court determined that the defendant insurer did not have a duty to defend and indemnify the plaintiff in underlying lawsuit in which plaintiff was accused of manufacturing and selling knock-off trailer by using the competitor's designs. In October 2014, Aluminum Trailer Company ("ATC") contracted...

In West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc., Docket No. 125978 (Ill Supreme Court May 20, 2021), the Illinois Supreme Court determined that the iInsurer of a salon has a duty to defend a class action lawsuit brought under the Illinois Biometric Information Privacy Act. Here, Sekura purchased a membership from Krishna that gave her access to L.A. Tan's salons. Her membership required Sekura to provide Krishna with her fingerprints. Sekura filed a class-action lawsuit against Krishna, alleging that Krishna violated Illinois' Biometric Information Privacy Act: because it...

In Santiful v Wegmans Food Market, 20-CV-2933 (S.D.N.Y. Jan. 28, 2022) the Circuit Court dismissed plaintiff's First Amended Complaint, which was a proposed class action lawsuit alleging that its vanilla cake mixes are misleadingly labeled. The lead plaintiffs say that the Wegmans brand vanilla cake mix contains nonvanilla flavors that provide the taste of vanilla but are not disclosed on the label as required by law and the expectations of consumers. The case claims that although the cake mix sold by Wegmans is described as "Vanilla" on the front of the box, the product's characterizing...

In Mahfuz v. RJ Reynolds and Philip Morris, Case No. No. 4D19-2236 (FL 4th DCA, June 30, 2021), the Florida appellate court reversed a large plaintiff's verdict ($12 million compensatory and $25 million punitive) because of inflammatory statements made by plaintiff's counsel. This was the second time counsel was found to be out of line. Here, the Court noted that Mahfuz's counsel called Philip Morris a "soulless enterprise of death." The court overruled the Tobacco Companies' objection. But that comment was intended to achieve the same result as the comment we disapproved of in R.J. Reynolds...

In Brown Jug, Inc. v. Cincinnati Insurance Co., Nos. 21-2644, 21-2715 and 21-2718, (6th Cir. Feb. 23, 2022), the trial court determined that Cincinnati Insurance Co. does not owe coverage for the lost business income seven Michigan restaurant operators suffered after stay-at-home orders restricting in-person dining were issued in response to the COVID-19 pandemic. Late last month, a 6th U.S. Circuit Court of Appeals panel unanimously affirmed the trial court's dismissal. In a consolidated appeal, Brown Jug Inc., Chelsea Ventures LLC, Dino Drop Inc. and four other restaurant operators failed...

In In re Zofran (Ondansetron) Products Liability Litigation, ___ F. Supp.3d ___, 2021 WL 2209871 (D. Mass. June 1, 2021), implied preemption resulted in dismissal of the entire MDL. The issue of whether the FDA's labeling decisions preempt state law claims has hung over the pharma industry for years. A judge just upended years of litigation against GlaxoSmithKline and its Zofran drug only months before a key trial was set to begin this fall. GSK has been defending against claims that Zofran, a nausea drug, can cause birth defects if used during pregnancy and that the company failed to warn...

In Mondis Technology, Ltd., et. al., v. LG Electronics Inc., Case No. 2020-1812 (Fed. Cir. August 3, 2021), Mondis sued various defendants for patent infringement in 2014, claiming that they violated a patent for a "display unit configured to receive video signals from an external video source." A jury trial in New Jersey District Court found that LG willfully infringed certain aspects of the patent, and awarded plaintiffs $45 million in damages. Following the verdict, LG filed three motions: a motion for judgment as a matter of law (JMOL) or new trial of non-infringement; a motion for JMOL...

In United Fire & Casualty Co. v. Prate Roofing & Installations, LLC, No. 19-3043 (7th Cir. July 30, 2021) the central question was whether a liability insurer for a roofing contractor owed a duty to defend another roofing contractor that was an "additional insured" under its policy. The Seventh Circuit found that District Court did not err in granting the defendant-general contractor/additional insured's motion for summary judgment in a declaratory judgment action brought by the plaintiff-insurance company seeking a declaration that it did not owe duty to defend the defendant in the...

In Stark v. Johnson & Johnson, No. 20-1837 (7th Cir. August 24, 2021), the Seventh Circuit reversed the entry of summary judgment in plaintiff's product liability action, alleging that defendants' pelvic mesh device was defective, where defendants asserted that said action was filed beyond applicable two-year limitations period. The record showed that: (1) plaintiff's initial surgery to implant the device occurred in 2007; (2) shortly after initial surgery, plaintiff reported continued urinary incontinence, leakage, and subsequent odor; (3) plaintiff's physician told her that her...

In Zylstra v. DRV, LLC, No. 20-1949 (7th Cir. August 10, 2021) the Seventh Circuit found that the District Court did not err in granting the defendant RV manufacturer's motion for summary judgment in an action by the plaintiffs-purchaser of a recreational vehicle, alleging that defendant breached express and implied warranties under state law, as well as violated the Magnuson-Moss Act. Plaintiffs alleged that defendant's recreational vehicle had multiple defects. But, in order to make claim for breach of express warranty, the purchaser must give the warrantor a reasonable opportunity to...