Last month, the Arizona Supreme Court became the most recent state high court to recognize the “learned intermediary doctrine” (LID). The LID provides a defense to drug companies in failure-to-warn products-liability cases so long as the manufacturers provided the prescribing doctor with all required safety information. In so doing, the court joined the 36 other state high courts that have expressly adopted the LID.
The case, Watts v. Medicis Pharmaceutical Corp., arose from the plaintiff’s use of the defendant’s acne medication. The plaintiff alleged that she was not properly warned about the possible side effects of taking the medication and developed lupus, she claimed, as a result of her usage of the drug. Importantly, the plaintiff did not allege that the defendant drug company failed to provide her prescribing doctor adequate warnings, just that the company did not warn her personally. The Arizona court of appeals reversed a dismissal of the claim, holding that the LID was no longer a viable legal theory and was abrogated by statute. Continue reading
Featured Expert Contributor – Intellectual Property (Patents)
Jeffri A. Kaminski, Venable LLP
For years, defendants in patent infringement cases have protested the ease with which patent plaintiffs could file complaints. Since 1938, Form 18—a model form in an appendix of the Federal Rules of Civil Procedure (FRCP)—set the pleading standard that courts in patent cases have applied. Form 18 requires that the complaint merely state that the plaintiff owns the patent(s), that the defendant infringes the patent(s), and that the plaintiff suffered damages. The form is barely over a page long and does not require any information on how the defendant infringes the patent or even what patent claims are allegedly infringed. Continue reading
The Schindler Elevator Corporation recently petitioned the Supreme Court of New Jersey to rebuke the plaintiffs’ bar’s most recent attempt to circumvent the longstanding prohibition on “Golden Rule” arguments. During closing arguments in Tufaro v. Headquarters Plaza, et al., a personal-injury trial, plaintiff’s counsel asked the jurors to think of awarding compensation “in terms of putting a want ad in the paper.” The hypothetical want ad would describe a job offer, one in which the applicant’s only duty is to suffer the plaintiff’s specific injuries. The insinuation is simple: How much payment would the jurors require to voluntarily endure the plaintiff’s injury? In other words, plaintiff’s counsel asks the jury to award damages based on how much compensation they would negotiate ex ante before agreeing to suffer the plaintiff’s injuries. This is exactly the type of Golden Rule argument that courts have long forbidden. Continue reading
Speaker: H. Michael O’Brien, Wilson Elser Moskowitz Edelman & Dicker LLP
Mr. O’Brien’s Powerpoint slides are available here.
Program description: The rapid proliferation of objects equipped with sensors and wireless capability, colloquially known as the “Internet of Things,” has inspired privacy and data-security concerns. Less considered, but no less serious, are the tort-liability risks that accompany these technologically-complex products. This program assessed how networked products could give rise to both traditional and unique failure-to-warn, design-defect, and other product-liability claims, and how businesses in the chain of supply, production, and sales can manage such risks.
For a higher-quality video, click here to access the archived version of the program as it was broadcast live from WLF’s platform.
Michael J. Lotito, Littler Mendelson LLP & Gregory P. Jacob, O’Melveny & Myers LLP
Federal administrative agencies, through rule changes, policy statements, and enforcement actions, have taken aim at the traditional employer-employee relationship, unsettling decades of employment law in the process. Many state workplace regulators have taken similar actions, and class-action lawsuits alleging, among other things, improper worker classification have proliferated. Our speakers explain how these disparate actions are converging to impact independent contracting, franchising, and other long-standing employment practices, and what affected enterprises can do to fight back.
Featured Expert Contributor – Civil Justice/Class Actions
Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P. (co-authored with Talia Zucker, Shook, Hardy & Bacon L.L.P.)*
The U.S. Court of Appeals for the Sixth Circuit’s recent decision in Rikos v. The Procter & Gamble Company was a setback to Rule 23 jurisprudence, but as is often the case, there is a silver lining—Judge Deborah Cook’s dissenting opinion. Judge Cook penned a thoughtful dissent that unravels the analytical shortcomings of the majority’s opinion, and demonstrates the conflict that exists between the majority opinion and the Supreme Court’s Rule 23 jurisprudence.
This lawsuit arose when three consumers (“Plaintiffs”), each residing in different states, purchased the product Align, a probiotic nutritional supplemental designed to promote digestive health, but believed it did not work as advertised. They subsequently brought this action against Procter & Gamble (“P&G”), the manufacturer of Align, claiming violations of various state unfair and deceptive practices because Align did not promote digestive health for anyone. Continue reading
Rule 23(f) of the Federal Rules of Civil Procedure gives appeals courts unfettered discretion in deciding whether to permit an interlocutory appeal from a class certification decision. Most circuits have exercised that discretion sparingly. But a U.S. Court of Appeals for the Ninth Circuit decision issued last week affirmed that circuit’s unique rule: plaintiffs (but not defendants) are entitled to take an immediate appeal from an adverse class certification ruling, even when an appeals court panel has previously denied discretionary appeal under Rule 23(f). All plaintiffs need do is stipulate to dismissal of the complaint with prejudice, and then seek review of the order denying certification in connection with an appeal from the final judgment of dismissal. Never mind that a plaintiff who stipulates to dismissal of his lawsuit might reasonably be deemed to have abandoned his claims. Continue reading