Monthly Releases

In Jaclyn Bjorklund v. Novo Nordisk, Case No. 2:23-cv-01020 (USDC, WD LA Dec. 8, 2023), a Louisiana federal judge refused to dismiss a lawsuit accusing Novo Nordisk A/S and Eli Lilly & Co. of failing to warn that their type 2 diabetes drugs Ozempic and Mounjaro can cause severe gastrointestinal issues, ruling the plaintiff adequately alleged her claims for inadequate warning. The District Court also dismissed the breach of express warranty claim with leave to amend, and deferred ruling on the claims for punitive damages and attorneys' fees.  There, plaintiff alleged that the...

In Liberty Insurance Corp. v. HNTB Corp., Case No. 22-3301 (8th Cir. Dec. 5, 2023), the Eighth Circuit reversed a lower court that had ruled in a construction company's favor and asked that it reconsider whether a Liberty Mutual Insurance Group unit was liable for coverage of a highway bridge deck's collapse during construction. The litigation concerned a construction project that involved lowering a bridge deck onto abutments to improve a stretch of highway in Corona, California.  Water became trapped in the deck, which caused it to fall, resulting in serious injuries to workers. An...

In the matter of In re Kia Hyundai Vehicle Theft Marketing, Sales, Practices, and Products Liability Litigation, Case No. 22-ml-03052. (USDC, Central District of CA, November 15, 2023) U.S. District Judge James Selna in Santa Ana, California rejected arguments that it was unfair to let insurers recover because they had collected premiums and assumed theft risks, and did not specifically identify which drivers were victims. Selna also found sufficient arguments that the lack of anti-theft devices on 14.3 million Hyundais and Kias made from 2011 to 2022 made thefts foreseeable, despite the...

In Barden v. Johnson & Johnson, et al., Case Nos. A-0047, 48, 49 & 50 - 20 (NJ App, October 3, 2023), the NJ Appellate Court pulverized a multimillion-dollar verdict for cancer patients alleging that tainted Johnson & Johnson's talcum powder caused their illnesses, cementing the Garden State's reputation as an emerging standard-bearer for expert witness testimony After being denied in its second attempt to resolve talc lawsuits through a bankruptcy ploy, Johnson & Johnson is doubling down on another tactic it has used to negate some of the 30,000-plus claims it faces. Here, a New Jersey...

In Cates v. Zeltiq Aesthetics, Inc., 73 F.4th 1342, 2023 WL 4671283 (11th Cir. July 21, 2023), the Eleventh Circuit affirmed the summary judgment victory of Zeltiq Aesthetics, Inc. in a failure-to-warn and design defect lawsuit regarding its CoolSculpting medical device and found that a health care provider's misunderstanding of an adverse effect did not bear on the adequacy of the product's warning. Zeltiq's CoolSculpting machine applies cold to fat in order to destroy fat cells in a process called "cryolipolysis." Zeltiq has included warnings, including in its device manual and training...

In Commercial Painting Inc. v. The Weitz Company LLC, Case No. W2019-02089 (Sept. 29, 2023) The Tennessee Supreme Court limited the application of the ?economic loss? doctrine to only certain product liability cases, rejecting the Court of Appeals' expanded application to of this doctrine breach of services contracts. The Court noted that the economic loss doctrine generally precludes a contracting party who suffers only economic losses from recovering damages in tort. In Tennessee, the application of this doctrine is limited to products liability cases. In this appeal, the Court considered...

In Johnson v. C.R. Bard, Inc., Case No. 22-2610 (7th Cir. August 11, 2023), plaintiff brought suit alleging that defendant's Meridian intravascular filter was defectively designed because it failed to warn medical providers of risks that filter would migrate from its implantation site and fracture in plaintiff's heart. The Seventh Circuit affirmed the District Court's determination that defendant was not entitled to new trial, where the jury found defendant strictly liable on failure to warn theory, and where plaintiff's expert provided an undisclosed opinion that was contrary to opinion...

In Johnson v. Edward Orton, Jr. Ceramic Foundation, 71 F.4th 601 (7th Cir. 2023), the Seventh Circuit reversed summary judgment for the defendant on a failure to warn claim, finding that the duty to warn can extend to packaging manufactured by another company. Here, the defendant, a manufacturer, and seller of pyrometric cones used for ceramics, shipped its cones using packaging material including a mineral called vermiculite. Starting in 1975, the cone manufacturer purchased its packaging material from a separate company, which had allegedly extracted the vermiculite from mining sites that...

In Elizabeth Hrymoc v. Ethicon, Inc., a case involving two pelvic mesh trial verdicts totaling $83 million against Johnson & Johnson's Ethicon unit and C.R. Bard Inc., the New Jersey Supreme Court considered whether defendant C.R. Bard, Inc., was denied a fair trial by the trial court's determination that defendant could not present 510(k) clearance evidence -- evidence that, pursuant to 21 U.S.C. ? 360c, the devices were allowed to be marketed without premarket clinical trials -- to counter the product liability claims. The Court also considered whether New Jersey's Products Liability Act...

In Jankowski v. Zydus Pharmaceuticals USA Inc, No. 22-2212 (3d Cir. July 24, 2023), the 3rd Circuit U.S. Court of Appeals upheld dismissal of a multi-plaintiff lawsuit against a manufacturer of generic amiodarone, ruling that their claims are preempted because they would require the defendant to issue communications to doctors that go above and beyond those implemented by the name-brand manufacturer. On July 24, the appellate panel explained that federal law prevents generic manufacturers like Zydus Pharmaceuticals USA Inc. from engaging in communications that surpass the labeling provided...

In Kristie Brownell v. Starbucks Coffee Corp, Case No. 5:22-cv-01199, (USDC ND NY, July 12, 2023), a federal judge in Syracuse, New York, has ordered lawyer Spencer Sheehan, known for filing numerous food and beverage labeling lawsuits, to provide an explanation for his actions in a proposed class action against Starbucks. U.S. District Judge Frederick Scullin criticized Sheehan for bringing a "frivolous" case that did not meet the necessary pleading requirements for such claims. Sheehan has faced warnings and threats of sanctions in the past for similar lawsuits. Judge Scullin dismissed...

In Carson v Monsanto, Case No. 21-10994 (11th Cir. July 10, 2023) the en banc Eleventh Circuit held that the express preemption provision in the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") should be interpreted according to ordinary principles of statutory interpretation, and not subjected to additional requirements imposed in implied preemption contexts. The opinion issued by en banc court reversed the panel's earlier decision and remanded the case back to the panel for further consideration of whether the claim is preempted. Here, plaintiff George Carson developed cancer...

In February 2022, the District Court overseeing the paraquat MDL rejected plaintiffs' attempts to expand public nuisance law, and confined product liability to its traditional sphere. Paraquat is a product used as a herbicide to control weeds and grasses in fruit and vegetable fields and orchards. The EPA has consistently concluded that paraquat does not cause Parkinson's disease, and continues to permit the product to be sold in the United States. Nonetheless, hundreds of plaintiffs have sued manufacturers and distributors of paraquat?including Chevron, whose predecessor distributed the...

In Amica Mut. Ins. Co. v. BMW of N. Am., 22-391-cv (2d Cir. Apr. 28, 2023) the Second Circuit affirmed the trial court's denial of BMW's Rule 50 Motion and upholding the jury verdict. In February 2022, U.S. District Judge David Larimer upheld a jury's $872,000 verdict against BMW of North America with the case centering on allegations that a raging house fire started after a 2011 BMW self-ignited in the garage of the plaintiff insurance carrier's insured home. The Court also added over $500,000 in prejudgment interest for a total Judgment in the amount of $ 1,381,283.39 which does not...

In Johnson & Johnson v. State of California, No. No. 22-447 (US SCt, February 21, 2023) the US Supreme Court denied J&J's petition for certiorari, declining the opportunity to untangle fair notice and deceptive marketing issues in a pelvic-mesh lawsuit. As a result, J&J was left with a $344 million verdict. In April 2019, the FDA ordered the end of sales of pelvic mesh, that was used to treat a common ailment called pelvic organ prolapse. The move came in response to a tide of lawsuits brought against manufacturers of the technology by women who alleged serious complications from its use in...

In Thirteen Investment Co., Inc. v. Foremost. Insurance Co., No. 22-2203 (7th Cir. May 2, 2023) the Seventh Circuit found that the District Court did not err in granting defendant-insurance company?s motion for summary judgment in plaintiff-insured?s action seeking payment from defendant on fire losses covered under policy issued by defendant. The record showed that plaintiff had retained third-party as public adjuster and general contractor for repairs on said fire losses and directed any insurance company to include third-party on all payments on fire loss claim. Defendant thereafter...

Donalds v. Ethicon, Case No. 22-1737 (4th Cir. Mar. 10, 2023), was one of those messy pelvic mesh remand cases. Here, Paula Donalds brought a products-liability suit against defendants Ethicon, Inc. and Johnson & Johnson, in the MDL seeking damages for injuries she claims were caused by a pelvic mesh device produced by Ethicon. She named experts about a year later, her case was remanded about two years after that, defendant moved for summary judgment, and the court requested briefing on the admissibility of the plaintiff's only case-specific expert under Fed. R. Evid. 702. That expert's...

In Pinares v. Raytheon, Case No. 19-14831 (11th Cir. Mar. 22, 2023), Florida toxicologist Lawrence Wylie testified that certain chemicals were found in groundwater near a Raytheon manufacturing site in south Florida, and had caused kidney cancer in residents. The case began in 2006, when Magaly Pinares and two of her neighbors were diagnosed with kidney cancer. The Pinares and the other victims lived in The Acreage, an upscale residential community near West Palm Beach, about eight miles from the Raytheon facility. Raytheon had opened the site at the height of the Cold War, in 1958, to build...

In United States v. Nieves, No. 21-1901-cr (2d Cir. Jan. 26, 2023), the defendant appealed the district court's judgment sentencing him to 36 months in prison following his conviction by a jury of witness retaliation. The defendant challenged how the district court conducted jury selection, arguing primarily that the district court neglected to adequately screen prospective jurors for bias against gang members and that the voir dire process was too abbreviated to allow for informed peremptory and for-cause challenges. The Second Circuit vacated the district court's judgment and remanded for...

In Anderson v. The Raymond Corp., No. 22-1872 (7th Cir. February 1, 2023) ( S.D. Ill. Reversed and vacated in part and remanded), the Seventh Circuit determined that the District Court had erred in denying plaintiff's motion for new trial, where said motion was based on claim that the Judge erred in excluding the opinion of plaintiff's expert that defendant's forklift, from which plaintiff fell, was negligently designed because it failed to include as a standard feature a door to enclose operating compartment. The expert, Dr. John Meyer believed that Raymond could have made a number of...

In Barnett v. Apple, Inc., 2022 IL App (1st) 220187 (December 23, 2022), the First District Illinois Appellate Court affirmed the dismissal of a class action against Apple claiming a violation of the state's Biometric Information Privacy Act. Plaintiffs filed a two-count class action lawsuit alleging that the defendant violated the Biometric Information Privacy Act by offering users of its phones and computers the option of utilizing face and fingerprint recognition features without first instituting a written policy regarding the retention and destruction of the users' biometric information...

In Prime Insurance Co. v. Wright, No. 22-1002 (7th Cir., January 13, 2023) the Seventh Circuit affirmed an Indiana District Court, that found in favor of the defendant, who obtained $400,000 default judgment in personal injury action arising out of car accident with insured's truck driver. Insurer sought a finding in a declaratory judgment action that a certain endorsement in insurance policy issued to insured did not entitle defendant to any proceeds under policy. Under the endorsement, the Insurer agreed to pay any judgment resulting from negligence in operation or use of insured's motor...

In Maynard. et. Al. v. Snapchat, Inc., No. A20A1218. (GA Appellate, January 25, 2023), the Georgia Court of Appeals, on remand from the Georgia Supreme Court, determined that the trial court erred by granting Snapchat's motion to dismiss on proximate cause grounds. Here, plaintiffs Wentworth and Karen Maynard alleged that Defendant Christal McGee was using Snapchat's ?Speed Filter? and driving over 100 miles per hour when she rear-ended them, causing severe injuries. The ?Speed Filter? is a feature that allows the user to record their real-life speed on a photo or video and share it with...

In Lemke v. Kraft, Case No. 21-cv-278-wmc (USDC WD WI May 6, 2022), the District Court bounced yet another one of plaintiff's counsel Spencer Sheehan proposed classic actions. Here, Sheehan's lawsuit against Kraft Heinz Food Company alleged that Bagel Bites have cheese that is a blend made with skim milk and tomato sauce that contains ingredients consumers wouldn't expect. U.S. District Judge William Conley joined colleagues in Illinois and New York who similarly rejected Sheehan's arguments, calling his claims "unreasonable and unactionable." Dismissing the suit, the Court stated that the...