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Internet Law & Strategy
Internet Goods and Product Liability
Jonathan Bick
The Internet’s value arises in part from its ability to provide images, data and content quickly and at little cost. This ability results from the fact that Internet products — whether they be images, data or content — are each reduced to a digital format. Sharing products that have been so reduced may result in product liability.
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Product Liability Law & Strategy
Defeating Certification of “No-Injury” Consumer Protection Class Actions
Steven P. Benenson
In the past several years, plaintiffs’ firms have threatened or brought class actions against different companies under New Jersey’s Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA). Here's what you need to know.
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Entertainment Law & Finance
Internet Goods and Product Liability
Jonathan Bick
The Internet’s value arises in part from its ability to provide images, data and content quickly and at little cost. This ability results from the fact that Internet products — whether they be images, data or content — are each reduced to a digital format. Sharing products that have been so reduced may result in product liability.
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Product Liability Law & Strategy
Maximizing Future Medical Damages in Paralysis Cases
Mitch Warnock
When you take a catastrophic injury case involving paralysis, it is important to have a thorough understanding of the problems and pitfalls. In this article, the author explores, from personal experience, the different types of future expenses the client can expect to incur.
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Product Liability Law & Strategy
Genetic Labeling: Legal Uncertainty for Pharma Product Liability
Shannon E. McClure and Whitney Mayer
The FDA’s recent approval of 23andMe’s direct-to-consumer genetic test to identify genes associated with 10 common diseases and disorders could result in a widespread expansion of patients armed with individualized health information. This expansion of genetic information in the hands of consumers potentially impacts regulatory and litigation issues for pharmaceutical companies.
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Product Liability Law & Strategy
Case Notes
Discussion of major rulings out of Texas and California.
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Product Liability Law & Strategy
Exclusion of Evidence: The FDA's 510K Process
Janice G. Inman
In a drug or medical device injury case, one of the defense's most potent arguments often is that the product in question underwent FDA approval. But when a device is approved for sale to the public through the FDA's 510(k) process, the rigorous safety and efficacy analysis required of new and unique medical devices has not been undertaken.
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Product Liability Law & Strategy
The Food Safety Modernization Act
Michael A. Leichtling
Part Two of a Two-Part Article
Last month, the author began discussion of the Food Safety Modernization Act (FSMA), which will have a large impact on the food and feed industry in the coming years. The author continues here with an explanation of some of the effects the FSMA is expected to have on equipment manufacturers and on lenders and lessors.
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Product Liability Law & Strategy
Unreliable Methodologies Doom Neck Brace Experts
Michael Hoenig
A U.S. Magistrate Judge in Indiana recently excluded the opinions of two experts because they did not meet the "reliability" criteria specified in Federal Rule of Evidence 702 and the famous Daubert decision. The rulings doomed the badly injured plaintiff's claim because summary judgment in favor of the defendant quickly followed.
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Product Liability Law & Strategy
Case Notes
Analysis of two key cases, one involving asbestos, the other an intrauterine birth control device.
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Product Liability Law & Strategy
The Food Safety Modernization Act
Michael A. Leichtling
Part One of a Two-Part Article
By being proactive in adopting safe food processing operations, such companies hope to protect their reputation and business from the negative publicity and possible financial disaster arising from the sale of contaminated food and non-compliance with the Food Safety Modernization Act (FSMA).
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Product Liability Law & Strategy
New Sources of Discoverable Evidence
Michael Ciaramitaro
Part Two of a Two-Part Article
Last month, the author discussed some of the technologies people are using today, such as fitness trackers and intelligent personal assistants, and the e-discovery implications they entail. Like these, automotive "Black Boxes" and drones could yield important information for those seeking evidence in a legal action.
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Product Liability Law & Strategy
'Healthy' Food Labeling
Benjamin R. Dwyer and Vivian Quinn
In 2017-2018, the food industry can expect to see fundamental change in the regulations regarding use of the word "healthy" in food packaging, and showdowns over class actions challenging food label claims.
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Product Liability Law & Strategy
3D Printing, Sharing Economy, and Other Emerging Industries
Michael S. Levine and Andrea L. DeField
Do You Have Adequate Coverage?
Most traditional or "legacy" insurance products fail to provide sufficient coverage for certain risk exposures vis-à-vis the 3D printing industry, just as they fail to adequately protect businesses in other emerging industries that, along with their concomitant risks, simply did not exist when the legacy insurance products covering them were formulated.
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Medical Malpractice Law & Strategy
Challenges to the Admissibility of Evidence in the 'Omics' Era
Ronald J. Levine and K. Heather Robinson
Due to our increased understanding of human genetics, there has been a shift in, and expansion of, the use of genetics in the courtroom to address the "how" and "why" — the causation of, or susceptibility to — disease in mass tort and products liability litigations. Here are some trial tips you need to know.
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Product Liability Law & Strategy
Increased Scrutiny for Cy Pres Provisions in Class Action Settlements
Joshua L. Becker and Brad M. Strickland
Despite the popularity of utilizing the cy pres doctrine and its benefits, courts are reviewing class-action settlement agreements that provide for cy pres payments with increased scrutiny.
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Product Liability Law & Strategy
New Sources of Discoverable Evidence
Michael Ciaramitaro
Part One of a Two-Part Article
Personal assistants, fitness trackers, and automotive black boxes are among the devices whose data and metadata may have big impact in legal cases. Here's why.
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Medical Malpractice Law & Strategy
Defamation and the Disgruntled Defendant
Janice G. Inman
Part One of a Two-Part Article
Analysis of a recent case in which a company, publicly accused by a plaintiff's lawyers of using non-FDA-approved medical devices, fought back by bringing a defamation suit against the opposing attorneys. The decision in the appeal offers some insights into what kinds of allegations may be publicized, and in what circumstances, when a product liability charge is brought.
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Product Liability Law & Strategy
Third-Party Litigation Funding
Jonathan Friedland, Elizabeth Vandesteeg and Jeffrey Goldberg
Third-party litigation funding is a relatively new, but rapidly expanding litigation financing vehicle. According to the authors, general counsel and commercial litigators would be well served to understand the changing landscape regarding the scope and potential uses of such funding.
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Product Liability Law & Strategy
Case Notes
A look at a situation in which, because the drug-manufacturing defendants seeking federal retention of a case removed from state court were unable to prove the four elements of the U.S. Supreme Court's Gunn test for federal-question jurisdiction, the case was remanded back to state court.
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Product Liability Law & Strategy
Challenges to the Admissibility of Evidence in the 'Omics' Era
Ronald J. Levine and K. Heather Robinson
Even though the technology is cutting edge, the admissibility of expert testimony regarding genetic testing is subject to age-old rules. This article reviews some recent decisions regarding genomics, and provides practice pointers for litigators involved in these types of proceedings.
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Product Liability Law & Strategy
Successor Liability and the Long-Lived Product
Janice G. Inman
When is a successor company liable for the torts of its predecessor? The question can be a thorny one, and each state has its own take on the issue.
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Product Liability Law & Strategy
Understanding NY's Economic Loss Rule
Brian P. Heermance and Christopher P. Keenoy
New York's Economic Loss Rule is purportedly a simple common law principle. However, its evolution and application have proven to be quite the opposite. It can significantly minimize exposure in many cases, and in some instances result in the complete dismissal of a claim.
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Product Liability Law & Strategy
Case Notes
Discussion of a pelvic mesh verdict.
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Product Liability Law & Strategy
Supreme Court Limits Forum Shopping with Plavix Lawsuit Decision
Janice G. Inman
OnJune 19, the U.S. Supreme Court upended years of jurisprudence to hand corporations a gift: a far more stringent definition of specific jurisdiction that will force plaintiffs to bring suit in multiple state courts rather than join their claims to those in far-flung jurisdictions.
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Product Liability Law & Strategy
Will the Tronox Decision Help the New GM?
Corinne Ball
General Motors LLC — the New GM — is subject to a multitude of lawsuits stemming from its alleged wrongdoings and the alleged wrongdoings of its predecessor, General Motors Corp. — the Old GM. This article presents an in-depth analysis of the litigation.
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Product Liability Law & Strategy
Case Notes
Analysis of a case in which a prescribed drug allegedly contributed to a young man's death.
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Product Liability Law & Strategy
The Effect of Safety Regulations on Product Defect Claims
George W. Soule
This article addresses some considerations for counsel in offering or defending against evidence of safety regulations.
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Medical Malpractice Law & Strategy
Product Liability, Bankruptcy and the Proceeds of Legal Action
Janice G. Inman
A recent case dealt with an unusual question presented to a bankruptcy court by a debtor's medical device product liability claim: If, at the time of bankruptcy filing, the debtor has a potential civil claim that lacks some of the elements necessary for recovery (which elements may never develop), yet later receives settlement, are the proceeds of that settlement part of the bankruptcy estate?
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Product Liability Law & Strategy
U.S. Supreme Court Speaks on Discovery Sanctions
Michael Hoenig
It is rare for a discovery sanction case to reach the nation's highest court. But on April 18, the U.S. Supreme Court issued its decision in Goodyear Tire & Rubber Co. v. Haeger, reversing a $2.7 million sanctions award that had been rendered by an Arizona district court and affirmed by a divided Ninth Circuit panel.
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Product Liability Law & Strategy
Product Liability, Bankruptcy and the Proceeds of Legal Action
Janice G. Inman
When does a cause of action accrue for an injury caused by an implanted medical device? This is a question that usually comes up when determining whether an allegedly injured plaintiff has brought his or her lawsuit in a timely enough manner to keep the claim from being thrown out on statute of limitations grounds. But if the case has been settled, or tried to a verdict that is not appealed, aren't we done with this question? Not necessarily.
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Product Liability Law & Strategy
Case Notes
Gun manufacturers Remington and Bushmaster have asked the Connecticut Supreme Court to throw out the case brought against them by the families of the victims of the 2012 Sandy Hook Elementary School massacre.
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Product Liability Law & Strategy
Defamation and the Disgruntled Defendant
Janice G. Inman
Anti-SLAPP Legislation and the Defamation Claim
Part Two of a Two-Part Article
In last month's newsletter, we began discussion of a defamation claim brought against two attorneys who took to the airwaves to publicize their client's complaints against a hospital and its owner. The defendants in that matter sought redress for what they claimed were untrue, and very unflattering, statements, but the attorneys moved for dismissal of the claims. We continue here with the court's reasons for granting the attorneys' motion.
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Product Liability Law & Strategy
Case Notes
On April 6, Florida's Supreme Court announced that a lawsuit against R.J. Reynolds Tobacco Co. may go forward, rejecting the cigarette manufacturer's argument that federal preemption foreclosed the right of an injured smoker and his representatives to bring state-law tort claims against it for marketing cigarettes.
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Product Liability Law & Strategy
Defamation and the Disgruntled Defendant
Janice G. Inman
Part One of a Two-Part Article
it is no wonder that those who find themselves on the receiving end of a product liability lawsuit and its attendant bad publicity sometimes fight back. So it was in a recent case, in which a company, publicly accused by a plaintiff's lawyers of using non–FDA-approved medical devices, fought back by bringing a defamation suit against the opposing attorneys.
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Product Liability Law & Strategy
In Light of Recent FTC Actions, Review Your Privacy Policy
Devika Kornbacher, Scott Breedlove, Janice Ta and Aislinn Affinito
Every day, billions of mobile and Internet-enabled computers, smartphones, watches, drones and even coffee machines are collecting vast amounts of geolocation…
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Product Liability Law & Strategy
Daubert Motions Really Do Work
John L. Tate
Part One of a Two-Part Article
The starting point for any successful challenge under Federal Rules of Evidence (FRE) 702 and is the form and content of the witness's disclosure under Federal Rules of Civil Procedure (FRCP) 26(a)(2). Here's why.
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Product Liability Law & Strategy
Class Certification
Jeremy M. Creelan
Will Gorsuch Pick Up Where Scalia Left Off?
For two decades leading up to Justice Antonin Scalia's death, the U.S. Supreme Court's class certification jurisprudence took shape as a dialogue between Justices Scalia and Ruth Bader Ginsburg over the commonality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2) and (b)(3), respectively. Will this continue if Gorsuch is confirmed to the Court?
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Product Liability Law & Strategy
Winning on the Road
Jacob Buchdahl, Arun Subramanian and Mark Hatch-Miller
Facing the prospect of a trial in a supposedly unfavorable venue, many defendants will agree to settle to avoid an unknown but potentially expensive and reputation-harming verdict. The authors describe what they think is a better way.
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Product Liability Law & Strategy
Case Notes
A settlement was reached on Feb. 10 between McNeil Consumer Healthcare and more than 200 plaintiffs who claim liver damage from taking the drug maker's product, Tylenol.
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Product Liability Law & Strategy
He, Cuevas, and the Law of Remittitur in New Jersey
Robert E. Spitzer
Despite the established purpose of a compensatory damage award, there are occasions when a verdict is so excessive it could only have been arrived at in an effort to punish, rather than to compensate. In those instances of a "runaway" jury award, there are two generally recognized forms of relief available to address the excessive verdict: a new trial as to damages only, or remittitur.
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Product Liability Law & Strategy
Will the CT Supreme Court Reinvent Design Defect Law?
Jeremy H. D'Amico and Michael A. D'Amico
Part Two of a Two-Part Article
A continuation of the discussion regarding the fact that the Connecticut Supreme Court is currently considering whether the state should abandon its traditional strict product liability standard for design defect claims and replace it with section 2(b) of the Restatement (Third) of Torts, which requires plaintiffs to prove the manufacturer's foreseeability of harm, and prove the effectiveness of a reasonable alternative design in order to recover damages for product-caused injuries.
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Product Liability Law & Strategy
Snakes in the Jury Box: The 'Reptile Method' and How To Defeat It
Marilyn Moberg, Alexis Rochlin, Alayna Jehle and Rick Fuentes
This article provides an overview of the "reptile method," why it can be successful if not rebutted, and some ideas on how a defendant can present a more fulsome story about its good conduct, actual legal obligations and the facts to the jury.
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Product Liability Law & Strategy
Case Notes
In the case of Caltagirone v. Cephalon, Philadelphia Court of Common Pleas Judge Denis P. Cohen has granted the plaintiff the right to subpoena documents concerning pharmaceuticals manufacturer Cephalon from the U.S. Attorney’s Office for the Eastern Dirstrict of Pennsylvania. Here’s an analysis of the ruling.
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Product Liability Law & Strategy
Avoiding the Hazards of Acquisition: Due Diligence in the Merger or Acquisition of a Product Manufacturer
Ronald J. Levine and Clifford Tatum
As corporations continue to reshape at a rapid rate, due diligence groundwork concerning product liability issues can be critically important. This article addresses how deals can be structured, and the areas that need to be explored, when evaluating a potential deal from the perspective of product liability.
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Product Liability Law & Strategy
Off-Label Promotion and Product Liability Considerations
Alan Minsk
An update on the current regulatory landscape in the off-label promotional area and also review potential liability risks for companies to consider, and recommendations to reduce these risks.
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Product Liability Law & Strategy
Will the CT Supreme Court Reinvent Design Defect Law?
Part One of a Two-Part Article
Jeremy H. D'Amico and Michael A. D'Amico
Despite the long-standing principle in Connecticut that product liability law is premised on strict liability, the state's Supreme Court is now considering whether it should abandon its strict product liability premise for design defect claims, and replace it with section 2(b) of the Restatement (Third) of Torts.
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Product Liability Law & Strategy
Liability Exposure When Experts Flub
Part Two of a Two-Part Article
Michael Hoenig
Last month, the author began discussion of the consequences of retaining an expert witness who errs on the stand. Should the expert be subject to lawsuit for damages? Could the attorney who hired him/her be held liable? The analysis concludes here.
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Product Liability Law & Strategy
Regulatory and Product Liability Practices: Siloed No More
Daniel J. Herling
In the field of product liability law, the silo phenomenon — in which different departments of an organization decline to share information with other departments of the same organization or field — is puzzling, since there have been several examples of situations where additional regulation has resulted in additional litigation.
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Product Liability Law & Strategy
Managing Product Liability Litigation
Eric L. Probst
Relationship building between in-house and outside attorneys is key to managing a product liability lawsuit. Trust is the core of the relationship.
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